Appeal No. 2003-0540 Page 14
Application No. 09/737,001
No. 5,803,831 teaches (column 20, table 8) that Surlyn® 8940 has a Shore D hardness
of 66. U.K. Patent Application No. 2 264 302 A teaches (page 5, lines 10-15) that
Surlyn® 9020 has a Shore D hardness of 55.
Thus, it would appear to us that Nesbitt's first ionomer resin (i.e., Surlyn® 1855)
in the outer layer has a Shore D hardness that falls within the claimed range of 40 to 50
or 55 (i.e., 55), that Nesbitt's second ionomer resin (i.e., Surlyn® 1605) in the inner layer
has a Shore D hardness that falls within the claimed range of 57, 64, or 66 to 68 (i.e.,
66), and that the difference in hardness between the first and second ionomer resins
falls within the claimed range of at least 5 in Shore D hardness (i.e., 11). Accordingly,
in any further prosecution before the examiner, we recommend that the examiner
determine if claims 9 to 11 and 13 are anticipated by Nesbitt and if so obtain the Group
Director's approval as required by MPEP § 2307.02.
CONCLUSION
To summarize, the decision of the examiner to reject claims 9 to 13 under the
judicially created doctrine of obviousness-type double patenting is affirmed and the
decision of the examiner to reject claims 9 to 13 under 35 U.S.C. § 112, first paragraph,
is affirmed.
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