Appeal No. 2002-0679 5
Application No. 08/684,351
utilization of the attack solvent provides improved bonding without dissolving the urethane
resin. See column 1, lines 50-52. As stated by Martin, “[b]y limiting the concentration
of the attack solvent, a fusion-type attachment can be obtained between the coated layer
and the polyurethane film." See column 3, lines 22-26. Finally, we find that the coating
is usually applied at room temperature, column 3, lines 45-48, and dried at a temperature
of 180 to 200o F. See column 3, lines 54-57.
In the statement of the rejection, however, the examiner does not address the
limitation of the claimed subject matter directed to the phrase, “wherein contact between
said first and said second layers occurs upon laminating said first and second layers together
at a temperature of between about 300o to about 465o F and consists essentially of
hydrogen bonding.” Only in the section directed to Response to Argument does the
examiner state that, "[t]here is nothing in the instant disclosure showing that the hydrogen
bonding is only occurred by contacting polyurethane layer and ethylene vinyl alcohol
copolymer layer at temperature of 300o to 465o F.” See Answer, page 7. The issue
before us, however, is not whether hydrogen bonding is present between polyurethane and
ethylene vinyl alcohol copolymer in Martin, but whether the contact is one that “consists
essentially of hydrogen bonding.” This is never addressed by the examiner and as such in
and of itself constitutes reversible error as the burden of proof rests with the examiner to
establish a prima facie case of anticipation and this element of the claim has not been
addressed.
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