Appeal No. 1998-2325
Application 08/484,114
second layer associated with the mixed conducting
impervious ceramic is a porous ion conducting layer
containing a selective hydrocarbon oxidation catalyst.
The first layer desirably has on its surface which contacts
oxygen a thin layer of an oxide of lanthanum, chromium, tin or
the like (col. 3, line 53 - col. 4, line 2).
The appellants argue that Hazbun discloses only the oxygen
ion conducting portion of the appellants’ multi-phase mixture
(brief, page 10). The examiner argues that Hazbun clearly states
that his membrane is both electronically conductive and ionically
conductive, and that the appellants must “demonstrate by facts
that the instant membrane in question is actually different from
Hazbun as far as the character of the phase is concerned”
(answer, page 6). The examiner has provided no evidence or
technical reasoning which shows that Hazbun’s membrane includes a
multi-phase mixture of an electronically-conducting phase and an
oxygen ion-conductive phase. The examiner, instead, puts the
initial burden on the appellants, which is improper. See Spada,
911 F.2d at 708, 15 USPQ2d at 1657; King, 801 F.2d at 1327, 231
USPQ at 138-39. Because the examiner has not carried the initial
burden of establishing a prima facie case of anticipation by
Hazbun, we reverse the examiner’s rejection over this reference.
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