Appeal No. 2002-1274
Application No. 09/153,309
911 F.2d 705, 708, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990); In re
Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). In the
present case, we concur with the examiner that the method steps
of claim 6, "pressing the molten metal in a press" and "applying
at least one stress selected from compressive stress and shearing
stress" at a temperature above the melting point of the alloy,
reasonably appear to be substantially the same as the die casting
method of Scruggs performed under pressure at a temperature above
the melting point of the zirconium alloy. Consequently, based on
this likeness in method steps, we find it eminently fair to place
upon appellants the burden of demonstrating that the methods
fairly taught by Scruggs do not form fitting cooling faces having
a temperature under the melting point of the molten metal. While
appellants have provided sketches attached to the Brief which are
asserted to depict differences between the cooling faces of
alloys produced by the methods of Scruggs and the claimed
invention, we agree with the examiner that:
Appellant has [sic, appellants have] not provided any
probertive [sic, probative] evidence that these
drawings accurately depict what occurs in the Scruggs
process nor has Appellant [sic, Appellants] shown any
specific concrete evidence (such as inferior
properties, which appellant states [sic, appellants
state] are inevitable when cooling faces are layered,
see specification page 2) that fitted cooling faces
under the melting point are formed for the process
taught by Scruggs [page 6 of Answer, last paragraph].
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