Appeal 2007-2863
Application 10/934,507
1 Examiner's finding. Under the binding precedent set out above, the
2 Examiner properly shifted the burden to Asahi Glass to show a difference.
3 Asahi Glass concedes Saito (WO) is the closest prior art. Appeal
4 Brief, page 8. The best argument presented by Asahi Glass in favor of the
5 appeal is the following (Appeal Brief, page 7):
6 in effect, the PTMG of Saito et al, even though reacted after the
7 polyol (1) therein is reacted with the polyisocyanate compound
8 [actually a diisocyante compound], rather than together with the
9 polyol (1), nevertheless, is not part of the curing agent but
10 rather, is part of the raw material polyol used for the
11 prepolymer. Thus, it is clear that the resin of Saito et al is
12 different from, and not suggestive of, the presently-claimed
13 elastomer from a purely chemical perspective, let alone from a
14 property perspective. Indeed, as described in the specification
15 at page 2, lines 15-18, when PTMG is used in this way, a low
16 hardness elastomer cannot be obtained without using a
17 plasticizer while achieving a superior mechanical strength.
18
19 The Examiner apparently was not impressed with the argument—
20 correctly so. A reaction product of Polyol 1 and a diisocyante to make a first
21 product which is then reacted with Polyol 2 to make a second product can be
22 the same as a reaction product of Polyol 2 and a diisocyanate to make a
23 different first product which is then reacted with Polyol 1 to make the same
24 second product. On this record, there is no credible evidence to support the
25 argument of counsel. Counsel would disagree, having pointed to page 2,
11
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