Appeal No. 2004-1872
Application No. 09/886,183
emulsion polymer prepared according to Example 1 of Rehmer was
found to be 17,746,493, and the weight average molecular weight
of the emulsion polymer prepared according to Example 2 of
Rehmer was found to be 416,902.
We note that Frazza’s experiments are not identical to
Rehmer’s Examples 1 and 2. For example, in Frazza’s example 1,
the aqueous emulsion was spiked with initiator instead of being
added continuously. Also, in Frazza’s Example 2, the relative
amounts for acrylamide, emulsifier I, and emulsifier II, are not
the same as Rehmer’s Example 2, and feature the use of ferrous
sulfate, which was not used in Rehmer’s Example 2. We presume
that these differences have no appreciable effect on molecular
weight.
III. The 35 U.S.C. § 102(b)
We have carefully reviewed the examiner’s position for the
anticipation rejection, set forth on pages 3-5 of the answer.
In particular, the examiner states that Rehmer teaches a polymer
having a weight average molecular weight range of from 50,000 to
2,000,000 and refers to column 9, lines 44-48 of Rehmer.
Answer, page 4. Appellants claim a weight average molecular
weight range of from 30,000 to 300,000.
We refer to the case of In re Arkley, 455 F.2d 586, 590,
172 USPQ 524, 526 (CCPA 1972). In this case, the court
indicated that for a proper anticipation rejection, the
reference must clearly and unequivocally disclose the claimed
invention without any need for picking, choosing, and combining
various disclosures not directly related to each other by the
teachings of the reference.
In the instant case, there is a need for picking and
choosing particular features disclosed in Rehmer, in order to
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