Appeal No. 2001-2345 Page 5
Application 08/898,627
'185 begins with a neutralized polyacrylic acid gel which is subsequently crosslinked.
The compositions in the end are the same." (Answer, page 4).
We first note that the examiner's conclusion of obviousness is based upon
clearly erroneous fact finding. The examiner's statement that the polyacrylates of '185
are made by adding base to Carbopol® is not supported by any reading of the
reference. '185 describes crosslinked polyacrylates in the most generic sense and
does not make any reference to polymers sold under the trademark Carbopol®. We
believe the examiner's error was based upon appellants' use of Carbopol® polymers in
the working examples of the specification in an attempt to force fit appellants’ materials
into the teachings of the reference. However, the fact remains that '185 does not
directly teach, nor do we find any suggestion therein, the crosslinked acrylic acid
polymer of ‘185 be one sold under the trademark Carbopol®.
Furthermore, even if the examiner's fact finding was correct, the examiner has
not properly relied upon the Carbopol® brochure as evidence of obviousness. The
stated rejection is based upon '185, Chen, and Bashaw, not the Carbopol® brochure.
As stated in In re Hoch, 428 F.2d 1341, 1342 n. 3, 166 USPQ 406, 407 n. 3 (CCPA
1970), "Where a reference is relied on to support a rejection, whether or not in a "minor
capacity," there would appear to be no excuse for not positively including the reference
in the statement of the rejection."
Be that as it may, viewing the examiner's rejection in its most favorable light, it is
that the gel described in '185 does not differ from the gel required by the claims on
appeal. In other words, a gel produced by adding water to a crosslinked salt of
polyacrylic acid as described in '185 does not differ from a gel resulting from the
Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: November 3, 2007