Appeal No. 2006-1022
Application No. 10/084,829
examiner’s § 102 and § 103 rejections improper since a graft copolymer product is not excluded
by the aforementioned claims. This latter point is most clearly evinced by claim 14 which
depends from independent claim 23 and which expressly recites “providing a polymerizable co-
monomer along with the monomer to form a copolymer” (emphasis added).
The appellant further argues that “Calcaterra does not disclose a fabric having sufficient
peracid to detoxify pesticides as claimed by Appellant in claims 21 and 38” (Supplemental Brief,
page 8). In this regard, the appellant acknowledges the examiner’s position that the reference
teaches a chain terminator in the form of percarboxylic acid (e.g., see lines 34-53 in column 8).
Nevertheless, it is the appellant’s contention that “the small amount of –00H used as a chain
terminator of the copolymer attached to the fabric of Calcaterra is not sufficient to provide
effective biocidal activity or effective chemical weapon or pesticide detoxification”
(Supplemental Brief, page 9).
As properly explained by the examiner in her answer, the deficiency of the appellant’s
contention is that the claims under consideration do not contain any requirements as to the
amount of percarboxylic acid which must be present or the amount of antimicrobial or
detoxification activity which must be exhibited by the percarboxylic acid. That is, the claims
encompass a fabric having the smallest possible amount of percarboxylic acid and antimicrobial
or detoxification activity exhibited thereby. Under these circumstances, it is reasonable and
appropriate for the Patent and Trademark Office to require that the appellant prove that the
percarboxylic acid of Calcaterra’s fabric does not necessarily and inherently possess the
antimicrobial and detoxification properties required by the claims under review. See In re Best,
562 F.2d 1252, 1255, 195 USPQ 430, 433-34 (CCPA 1977) and Ex parte Levy, 17 USPQ2d
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