Appeal 2007-1897
Application 10/044,846
ANTICIPATION
Claims 4-9 and 66-82 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Qin.1
According to the Examiner, “Qin teaches a water-swellable modified
polysaccharide formed by mixing [a] modified polysaccharide, water, and a
crosslinking agent . . . The polysaccharide is carboxyalkyl polysaccharide,
such as carboxymethyl cellulose or carboxymethyl starch; and the
crosslinking agent is ethylene glycol or butylene glycol” (Answer 3). The
Examiner contends that Qin “discloses the same carboxyalkyl
polysaccharide, i.e. carboxymethyl starch, and the same crosslinking agent,
i.e. ethylene glycol, as presently claimed, [thus,] a product of Qin would
inherently be the same as presently claimed” (id. at 4).
Appellants contend that the claimed compound of formula 2 is not
cross-linked with “a polyol cross-linking agent such as ethylene glycol [or]
butylene glycol” (Appeal Br. 4),2 but with “activated polyalkylene glycols”
(id.) Appellants assert that “the use of activated polyalkylene glycols . . .
inherently results in crosslinked polysaccharides that are structurally
significantly different from those of Qin” (id. at 7).
“[I]n an ex parte proceeding to obtain a patent, . . . the Patent Office
has the initial burden of coming forward with some sort of evidence tending
to disprove novelty.” In re Wilder, 429 F.2d 447, 450, 166 USPQ 545, 548
(CCPA 1970). If, however, “the PTO shows sound basis for believing that
1 U.S. Patent 5,550,189 to Qin et al., issued August 27, 1996.
2 All references to the Appeal Brief (“Appeal Br.”) are to Appellants’
Amended Appeal Brief, submitted June 30, 2006.
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