Appeal No. 2003-1038
Application No. 09/262,628
necessarily “fluoroplastics.” This argument lacks merit in view
of Hammar’s disclosure.
We have also considered the arguments in the reply brief
filed Apr. 28, 2002 (paper 20) but do not find any of them
persuasive.
Because the appellants have not adequately rebutted the
examiner’s prima facie case based on a lack of written
description in the specification for the now claimed subject
matter, we affirm.
35 U.S.C. § 103(a)
The examiner’s position is that the claimed characteristics
would be inherent in the references. We disagree, because
inherency cannot be established by mere possibilities or
probabilities. MEHL/Biophile Int’l Corp. v. Milgraum, 192 F.3d
1362, 1365, 52 USPQ2d 1303, 1305 (Fed. Cir. 1999); In re
Oelrich, 666 F.2d 578, 581, 212 USPQ 323, 326 (CCPA 1981);
Hansgirg v. Kemmer, 102 F.2d 212, 214, 40 USPQ 665, 667 (CCPA
1939).
Regarding Pustka, we agree with the appellants (appeal
brief, pages 6-7) analysis.
Because the examiner has not established a prima facie case
of obviousness, we cannot affirm.
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