Appeal No. 95-3734
Application No. 08/043,620
or near, i.e., substantially at, the gel point (specification,
page 17, lines 6 through 9).
In short, the examiner has not adduced sufficient evidence
to support a conclusion that the claimed and prior art products
reasonably appear to be identical or substantially identical.
The examiner has not established that the claimed and prior art
products are produced by identical or substantially identical
processes. Accordingly, the PTO cannot here require appellants
"to prove that the prior art products do not necessarily or
inherently possess the characteristics of [their] claimed
product." In re Best, 562 F.2d at 1255, 195 USPQ at 433. On
this record, the examiner has not established a prima facie case
of anticipation under 35 U.S.C. § 102 or obviousness under
35 U.S.C. § 103, and the burden of persuasion has not shifted to
the appellants to rebut any such prima facie case. We therefore
find it unnecessary to discuss the Sommerfeld Declaration
executed November 18, 1992; the Schadt Declaration executed
December 2, 1992; or the Sperling Declaration executed
December 22, 1993; all designed to rebut a prima facie case of
unpatentability under 35 U.S.C. § 102 or 35 U.S.C. § 103.
The prior art rejection is reversed.
We next consider the rejection of claims 1 through 23, 40
through 42, and 99 under 35 U.S.C. § 112, first and second
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