Appeal 2006-2774
Application 10/309,493
DF58 is functionally equivalent to Foamaster 111 for their use as a defoamer
in a composition comprising a binder such as acrylics (See column 5, lines
27-47), pigments, filler, dispersants and surfactants, and the selection of any
of these known materials as [a] defoamer in Erismann . . . would be within
the level of ordinary skill in the art” (Answer 5).
Finally, with regard to the limitation in claim 1 reciting a water
content “in the range of 10 to 35 weight percent,” the Examiner presents
calculations showing that Erismann’s composition contains a content of
water which falls within the claimed range (Answer 4).
Appellant contends that the rejection is improper. Appellant argues:
(1) The Examiner has failed to identify all elements of claim 1 in the prior
art; (2) The Examiner has used Appellant’s application as a blueprint to
reproduce the claimed invention (Br. 11); (3) Erismann’s composition is a
caulking material, not a composition that can be “applied with the ease of
conventional paint” as recited in claim 1 (Br. 7, 12-14): (4) “Applicant’s
claim 1 DOES NOT include any latex from chemical standpoint” (Br. 14);
and (5) Erismann does not disclose a water content that meets the claimed
limitation (Reply Br. 3).
We begin by addressing Appellant’s contention that the Examiner has
not identified all elements recited in the claim. As summarized in the table
in the Findings of Fact, we find support in Erismann for all eleven ((a)
through (k)) classes of components recited in claim 1. Apparently, errors
were made during prosecution by the Examiner in referencing the paragraph
numbers in Erismann where support for the components could be found
(Answer 3). However, these errors were corrected in the Answer and we
find the Examiner’s conclusion to be supported by the evidence. Thus, the
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