Appeal No. 2006-2811 Page 8
Application No. 09/973,646
claim 1, or a molded article made from it, further or optionally comprising one of several
specified metals or metal salts. With respect to these claims, we reverse because we
conclude that the examiner has not set forth a prima facie case that Gallucci anticipates
claim 1.
Gallucci describes a molding composition comprising 5 to 40 wt.% polyester
resin, 60 to 95 wt.% tungsten metal filler, and optionally 0 to 20 wt.% impact modifier.
Col. 2, lines 11-18. Gallucci states that the tungsten metal filler comprises particles of
tungsten metal and that the amount of tungsten is preferably from 65 to 85%. Col. 3,
lines 20-22 and 44-45. Gallucci lists styrene-containing polymers as impact modifiers
and states that the impact modifiers are preferably used in an amount less that about
10% and most preferably less than about 5%. Col. 4, lines 28-29; col. 3, lines 50-54.
The examiner argues that Gallucci describes a “composition comprising about 60
to about 95 wt.% tungsten which clearly overlaps the amount of tungsten presently
claimed and 1-10% impact modifier.” Examiner’s Answer, page 17. In addition, the
examiner argues that, although Gallucci discloses “the use of impact modifiers other
than styrene-based elastomers as presently claimed, . . . the choice of styrene-based
elastomers is not from amongst a vast number of impact modifiers disclosed by Gallucci
et al. but only from amongst a group of five.” Examiner’s Answer, page 17.
Appellants argue that “there is no specific disclosure in [Gallucci] of a
composition which falls within the scope of the present claims. The impact modifier of
this reference is optional and the use of a styrene-containing polymer as the impact
modifier is also optional.” Appeal Brief, page 10. In addition, Appellants note that
“Examples 3 and 4 in Table 1 and Examples 9 and 10 in Table 2 of this reference are
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