Appeal No. 2003-1889
Application No. 09/367,455
appellants to prove that a function or property relied upon for
novelty is not possessed by prior art compounds otherwise
meeting the limitations of the claims. In re Best, 562 F.2d
1252, 1255, 195 USPQ 430, 433 (CCPA 1977).
Accordingly, absent such proof, as in the present case,
we are not convinced by appellants’ arguments that Blake’s
product does not have the properties of (1) “wet” stick and
(3) the ability to adhere to wet substrate surfaces.
With regard to the asserted difference (2) of a wet-stick
pressure sensitive adhesive comprising a polymerizable product
of a non-reactive plasticizing agent, Blake discloses that the
adhesive comprises the blended reaction product of components
(a), (b), and (c). See column 2, lines 42-68 and column 3,
lines 1-18 of Blake. Component (b) of Blake is an ethoxylated
plasticizing component. Appellants do not dispute that this
component is the same/similar to their claimed plasticizing
agent. Assuming, arguendo, that the plasticizing agent of Blake
is not the same/similar as claimed by appellants, appellants’
argument made on page 3 of the Reply Brief that the plasticizing
component is not part of the polymerizable mixture indicates
that the plasticizing agent of Blake is a non-reactive
plasticizing agent and regardless, would not alter the structure
of the product. Furthermore, as mentioned supra, the claim is
interpreted as covering the claimed product, no matter how it is
made. In re Thorpe, 777 F.2d 695,697, 227 USPQ 964, 965-66 (Fed.
Cir. 1985). It therefore follows that because Blake discloses a
similar compound, no matter how made, appellants’ claim 1 is
rendered anticipated or obvious over Blake.
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