Appeal 2006-2931
Application 10/447,009
Examiner's determination that the binder of Eknoian is composed of similar
materials and polymerized under similar conditions as the claimed invention
so as to result in a polymer with the claimed properties. Dr. Rabasco's
Declaration filed under 37 C.F.R. § 1.132 is insufficient to rebut the
Examiner's determination because the determination as to how the Declarant
has reached the opinion cannot be ascertained from the Declaration. The
Declaration does not specifically provide the test conditions that were
employed in reproducing the examples identified in paragraph 7 of the
Declaration. The Declaration, at paragraphs 9 and 10, reports a polymer
reproduction that includes amounts of ethylene and N-Methylol Acrylamide
(NMA) that are not the same as that reported in Table 1 of Eknoian for
Examples 11 and 14. Nor does the Declaration address the apparent
viscosity discrepancies between the values reported for Examples 11 and 14
of Eknoian and the Declarant’s procured reproductions. The discussion of
Example 13 of Eknoian does not include analysis of the crystalline segments
and/or the crystalline melting point of the disclosed composition and how
these properties relate to wet/dry tensile strength. The data relied upon by
Appellants in the Specification merely shows a few compositions with
crystalline ethylene segments. Also, the Comparative Examples 10-12 in the
Specification have not been adequately described in terms of the process
parameters used for forming the compositions so as to ascertain how closely
they resemble the method of preparation used in forming the example
compositions of Eknoian so as to be truly comparative. The burden is on
Appellants to establish the significance of the comparative data. See In re
Klosak, 455 F.2d 1077, 1080, 173 USPQ 14, 16 (CCPA 1972).
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