Appeal No. 2005-0914 Page 3
Application No. 09/843,219
DISCUSSION
THE REJECTION UNDER 35 U.S.C. § 102:
According to the examiner (Answer, page 3), “Ohno discloses an
emulsified foundation comprising zinc oxide and zirconium oxide composite
possessing photochromic properties, water, preservative, and iron oxide….”
According to the examiner (id., emphasis added), Ohno “teaches that the
ingredients are dispersed in the mixture.” We note, however, that each claim on
appeal requires that the ingredients be more than dispersed in the mixture, each
claim on appeal requires that requires that the composition be structured in such
a way that the fixed color dye is located exterior to, at least2, the dispersed
photochromic composition. Accordingly, we disagree with the examiner’s
assertion (Answer, page 3) that Ohno “meets every limitation of [ ] claim 36.”
“Under 35 U.S.C. § 102, every limitation of a claim must identically appear
in a single prior art reference for it to anticipate the claim.” Gechter v. Davidson,
116 F.3d 1454, 1457, 43 USPQ2d 1030, 1032 (Fed. Cir. 1997). Since the
examiner failed to meet her burden of demonstrating that Ohno teaches a
composition wherein the “fixed color dye” is “located exterior to the dispersed
photochromic composition,” the rejection of claims 36, 39 and 42 under 35
U.S.C. § 102 as anticipated by Ohno is reversed.
2 We note that for claims 43 and 47 the fixed color dye is “located exterior to the dispersed
photochromic and thermochromic compositions.”
Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: November 3, 2007