Appeal 2007-3547
Application 10/231,652
on the Applicant to prove that the product of the prior art does not
necessarily or inherently possess characteristics or properties attributed to
the claimed product. In re Spada, 911 F.2d 705, 708, 15 USPQ2d 1655,
1657 (Fed. Cir. 1990).
In particular, we note that representative claim 36 does not require
that the claimed composition be suitable for employment as a final coating
layer for the inside surface of a food can and/or as a composition that meets
a particular regulatory standard. Thus, the claimed coating is open to the
inclusion of a prior art coating including the broadly recited components in a
coating composition, such as described by Kadowaki or Taga, and which
coatings are suitable for use as an outer can coating or as an under layer or
adhesive primer for a final (food-contacting) coating layer of a food-side
surface of a can.
For the aforementioned reasons, we affirm the Examiner’s first and
second stated anticipation rejections.
As for the Examiner’s § 102(b)/§ 103(a) rejections of claims 7, 8, 15,
17, 36, 39, 41, and 43-48 over Simms, Appellants contend that the pigment
dispersant of Simms is not a film-forming coating composition, as required
by representative claim 36 (Br. 3). Moreover, Appellants additionally
contend that the optional obviousness position of the Examiner is in error
because Simm’s pigment dispersion is not a film forming component; that is,
it does not form part of a film (Br. 4; Reply Br. 1-2).
On the other hand, the Examiner contends that Simms describes a
coating composition without epoxy, the composition including a solvent, a
cross-linker, and polyester grafted with acrylic copolymer, which
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