Appeal No. 1997-4194
Application No. 08/357,435
195 USPQ 430, 434 (CCPA 1977); In re Brown, 459 F.2d 531, 535, 173 USPQ
685, 688 (CCPA 1972).
In view of the identity of the formulas taught by Dubois and appellants and the
stoichiometry required by the claimed process of Dubois, it is reasonable to conclude
that appellants claimed quasi crystalline alloy as defined by claims
20-24 and that of Dubois are the same or substantially the same. Thus, the burden
has shifted to appellants to demonstrate a difference between their metal alloy film
and that of the Dubois reference, and appellants have not carried this burden.
For the above reasons, we conclude, based on the preponderance of the
evidence, that the inventions recited in appellants’ claims 20-24 are anticipated by or
would have been obvious to one of ordinary skill in the art within the meaning of
35 U.S.C. § 102(b) and 35 U.S.C. § 103.
DECISION
The rejection of claims 1 through 24 under 35 U.S.C. § 112, second
paragraph, as being indefinite for failing to particularly point out and distinctly claim
the subject matter which the applicant regards as his invention is reversed.
The rejection of claims 1 through 19 under 35 U.S.C. § 102(b) as anticipated
by or, in the alternative under 35 U.S.C. § 103 as obvious over Dubois is reversed.
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