Appeal 2007-3547
Application 10/231,652
Taga each describe a coating composition including a polyester urethane
rubber grafted with an acrylic acid (Br. 2-3). Nor do Appellants argue that
either of these separately applied references fails to include a solvent and a
crosslinker in the respective coating compositions of each. Rather,
Appellants assert that one of ordinary skill in the art would not interpret the
described adhesive coating composition of each of these separately applied
references to be a polyester-containing composition “suitable for coating
food cans.” In other words, Appellants maintain that the claimed polyester-
containing composition would not read on the described polyester urethane-
containing composition of either of these applied references because such a
claim construction would be at odds with the asserted food can coating
utility of the claimed composition (Reply Br. 1).
We are not persuaded of reversible error in either of the Examiner’s
first two stated anticipation rejections by this argument for reasons stated by
by the Examiner (Answer 4-5). In particular, Appellants' Specification does
not define the claimed polyester component as excluding polyester
urethanes. Significantly and as noted by the Examiner, Appellants include
tris-hydroxyethylisocyanurate (a urethane forming component) as being
useful in making the claimed polyester component of the claimed
composition (Answer 5; Specification 3).
Regarding the asserted “suitability for coating food cans” argument,
we note that Appellants have not furnished any persuasive evidence to
establish that the coating compositions of either Kadowaki or Taga are
unsuitable for such a use. When a claimed product appears to be
substantially identical to a product disclosed by the prior art, the burden is
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