Appeal No. 2002-0322
Application 08/681,870
α,β-unsaturated carboxylic acid having 3 to 8 carbon atoms and 80 to 90 wt % of an α-olefin,
with a metal ion (col. 1, lines 48 and 59-64; col. 2, lines 1-6). Three such neutralized acid
copolymers are exemplified in Horiuchi Table 1 under the tradenames “Hi-milan 1605,”
“Hi-milan 11706” and “Hi-milan 1605” which are sodium ion, zinc ion and zinc ion neutralized,
respectively, and constitute a blend of neutralized acid copolymers which combine for 65 parts
weight percent of the composition for a golf ball cover in Horiuchi Example 1 and for 40 weight
percent of the composition for a gold ball cover in Horiuchi Example 2 (col. 3, lines 37-44).
It reasonably appears that each of the three exemplified metal cation neutralized acid
copolymers falls into the requirement for such a copolymer set forth in each of appealed claims 1
and 10 that we discuss above, and the amount of the three polymers, separately and combined,
used in each of the exemplified compositions also satisfies the parts by weight requirements in
each of these claims.
Accordingly, because each of appealed claims encompass compositions can comprise
specified amount of the metal cation ion neutralized acid copolymer and the specified amount of
the saponified ethylene copolymer in the claimed cover for the golf ball as we discuss above, we
further find each of appealed claims 1 and 10 to be prima facie anticipated by the compositions
of Horiuchi Examples 1 and 2 as a matter of fact under § 102(e) on this basis.
Therefore, in view of the established prima facie case of anticipation over Horiuchi, the
burden has shifted to appellants to present effective argument and/or objective evidence to
patentably distinguish the compositions encompassed by appealed claims 1 and 10 from the
compositions disclosed by the reference. In this respect, we have again considered all of the
evidence of anticipation found in the applied prior art with appellants’ countervailing evidence of
and argument for non-anticipation set forth in the brief and reply brief. Spada, 911 F.2d
at 707 n.3, 15 USPQ2d at 1657 n.3. We again agree with the examiner that there is no basis in
the appealed claims for appellants’ contentions with respect to the point at which the acid
copolymer and the ethylene copolymer are respectively neutralized and saponified, and thus,
appellants cannot rely on such argument with respect to Horiuchi. See Verdegaal Bros. Inc. v.
Union Oil Co., 814 F.2d 628, 632, 2 USPQ2d 1051, 1053 (Fed. Cir. 1987) (“[T]here is no
limitation in the subject claims with respect to the rate at which sulfuric acid is added, and,
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