Appeal No. 1999-1073
Application No. 08/819,239
combination, teach or would have suggested the employment of the
claimed polypropylene block copolymer or polypropylene random
block copolymer in the nonflammable halogen-free composition
described in Keogh. As correctly pointed by appellant (e.g.,
Brief, pages 7, 9, 10 and 11), the examiner recognizes that the
applied prior art does not teach the claimed polypropylene block
copolymer or polypropylene random block copolymer. To remedy
this deficiency, the examiner asserts (Answer, pages 4 and 5)
that:
Keogh relates the same flame retardant systems’s
application in ethylene copolymers with propylene.
Since applicant has not deigned to reveal with any
degree of specificity what the comonomer(s) of his
propylene block or random block copolymers are [,]
they should be presumed to be those which are
ordinarily employed in making propylene copolymers
such as Keogh utilizes. Applicant has not pointed out
any properties inherent in the makeup of the instant
propylene block copolymers that would tend to detract
from using the same preservatives as ordinarily used
in the nonblock form of the copolymer[.] The fact that
Keogh relates that alternatively polymers as diverse
as polycarbonate, polyesters, and polyurethanes or
diolefin derived polymers are also made flameproofed,
signifies the absence of criticality in the spatial
configuration of the hydrocarbon radicals in the
polymers’ chains as a factor in predicting amenability
to flameproofing.
In so asserting, the examiner has improperly shifted the burden
to appellant without first establishing a prima facie case of
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