Appeal 2007-0504
Application 10/700,078
2. Claim 6 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Friel.1
Rather than reiterate the respective positions advocated by the
Appellants and by the Examiner concerning these rejections, we refer to the
Brief and to the Answer respectively for a complete exposition thereof.
Appellants do not separately argue the claims. Accordingly, we select
independent claim 2, the broadest claim on appeal, as a representative claim
on which to render our decision. Claim 2 does not require a “chain transfer
agent” and, thus, is broader than claim 1.
OPINION
35 U.S.C. §§ 102(b)/103(a) REJECTIONS OVER FRIEL
Because of the phrase “said emulsion polymer is formed by emulsion
polymerization,” the Examiner construed claim 2 as a product-by-process
claim (Answer 3). Appellants have not contested that claim construction.
Like the Examiner, we treat claim 2 as a product-by-process claim in our
analysis of the Examiner’s rejections.
Appellants argue that the data contained in Table 4.1 on page 20 of
the Specification refutes the Examiner’s contention “that, on the basis of
similarities in monomer compositions, it may be concluded that emulsion
1 The rejection of claim 6 under § 103(a) over Friel appears in the
Supplemental Answer on page 5, but does not appear in the final Office
Action mailed September 15, 2005. However, the rejection of claim 6 under
§ 103(a) over Friel does appear in the non-final Office Action mailed
April 4, 2005. Appellants state that “Claims 1-7 stand finally rejected under
35 USC 103(a) as being unpatentable over Friel.” (Br. 4). Thus it is evident
from the record that Appellants and the Examiner understand that claim 6 is
finally rejected under § 103(a) over Friel (Br. 4, Supplemental Answer 3, 5).
3
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