Appeal No. 2003-1625
Application No. 09/341,669
Whether the rejection is based on “inherency” under 35 U.S.C.
§ 102, on “prima facie obviousness” under 35 U.S.C. § 103,
jointly or alternatively, the burden of proof is the same and its
fairness is evidenced by the inability of the Patent and
Trademark Office to manufacture products or to obtain and compare
prior art products. In re Best, 562 F.2d 1252, 1254-55, 195 USPQ
430, 433-34.
On the record of this appeal, the appellants have proffered
no such proof. These circumstances lead us to the determination
that the claims under review do not distinguish over Wanat or
Numrich in any of the respects argued by the appellants including
the yellow index characteristic of the molding product which is
required by these claims.
In summary, we have sustained each of the rejections
advanced by the examiner on this appeal.
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