Appeal No. 2005-0845
Application 10/249,204
arguments and response thereto reference is made to the brief and
the reply brief.
Opinion
We have carefully reviewed the rejections on appeal in light
of the arguments of the appellant and the examiner. As a result
of this review we have determined that claims 2, 4, 5, 7, 10
through 12, 21 through 23, 25, and 27 through 29 are not
anticipated by Davis. Furthermore, we affirm the section 112
rejection of claim 26. Our reasons follow.
At the outset we merely note that the appellant has wrongly
identified the quantum of proof needed to sustain an examiner’s
rejection. See Brief, page 7. While the Agency’s burden before
the Federal Circuit is substantial evidence, In re Lee, 277 F.3d
1338, 1342-43, 61 USPQ2d 1430, 1432 (Fed. Cir. 2002), an
examiner's burden of proving unpatentability when rejecting
claims in a patent application within the agency is by a
preponderance of the evidence. In re Caveney, 761 F.2d 671, 674,
226 USPQ 1, 3 (Fed. Cir. 1985). In order to satisfy this
standard, the evidence must demonstrate that a fact is more
likely than not. See Bosies v. Benedict, 27 F.3d 539, 541-42,
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