Appeal 2006-3083
Application 10/121,634
§ 102(b) as anticipated by Tseng. Because the Examiner relies on similar
reasoning for both rejections, we can consider them together.
The Examiner cites Krall’s disclosure of a composition comprising an
alkyl cyanoacrylate monomer, an “aggregate structure formed from alkyl
cyanoacrylate monomer,” and a visualization agent (Answer 3). The
Examiner cites Tseng’s disclosure of a composition comprising alkyl
cyanoacrylates and a visualization agent (id. at 5). The Examiner concludes
that these disclosures anticipate the instant claims because the references
disclose “a polymer and the presence of the monomer of the 2-cyanoacrylate
in the polymer composition is not excluded by the open language of
‘comprising’ in claim 1” (id. at 9).
Appellant argues that, “[g]iven that claim 1 of the present application
discloses the use of poly(2-cyanoacrylate) monomers and the Krall reference
discloses only mono(2-cyanoacrylate) monomers and polymers formed
therefrom, Krall cannot anticipate claim 1 of the present application” (Br. 6).
Appellant makes the same argument with respect to Tseng (Br. 9).
We will reverse the rejections for anticipation. As we understand it,
the Examiner’s position is that the formula in claim 1 reads on polymerized
mono(2-cyanoacrylate). We disagree with this interpretation of the claims.
The claims on appeal require monomers in which the R moiety has at
least two cyanoacrylate groups bonded to it. The monomers in the prior art
composition only have one cyanoacrylate group per monomer; i.e., one
cyanoacrylate group per R moiety. See, e.g., Krall, col. 13, ll. 55-60.
It is the cyanoacrylate group, not the R moiety, that is involved in the
polymerization reaction. See the Specification, at 2: 4-6 (“The reactive
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