Appeal 2007-0124
Application 10/273,836
Jun. 18, 1991, as evidence of non-obviousness (e.g., Br. 4; see the Evidence
Appendix attached to the Brief).
Claims 1-9 and 16-20 stand rejected under 35 U.S.C. § 102(b) as
anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as obvious
over Ryan (Answer 4). Based on the totality of the record, we AFFIRM this
rejection on appeal essentially for the reasons stated in the Answer, as well
as those reasons set forth below.
OPINION
The Examiner finds that Ryan discloses formulations comprising a
styrene block copolymer in an amount within the range claimed, and
polyethylene wax, also in an amount within the claimed range (Answer 4).
The Examiner finds that the Specification clearly indicates that low
molecular weight polyethylene waxes are suitable as waxes for the claimed
invention (id., citing the Specification 5:25). In view of these findings, the
Examiner finds that the composition disclosed by Ryan is “substantially
identical” to the claimed hot melt adhesive (id.). Therefore, the Examiner
concludes that there is a “reasonable basis” for believing that the claimed
properties, not explicitly disclosed by Ryan, are “inherently possessed” by
the reference compositions (id.).2 Accordingly, the Examiner believes the
burden of proof has been shifted to Appellants (id.).
2 The Examiner erroneously states that the claimed properties are “inherently
possessed in Kueppers” (Answer 4). We hold this error harmless since it is
clear from the context of the rejection that the Examiner is referring to Ryan,
3
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