Appeal 2007-0738
Application 11/109,274
Separately argued claims 12 and 18 specify that the ceramic body is
mullet. The Examiner properly points out, however, that DiChiara teaches
that the ceramic powder in the aqueous composition can be mullet or
cordierite and that the powder "is preferably made of a ceramic material
other than the ceramic material of a ceramic body to be protected" (col. 3, ll.
14-16). Consequently, we agree with the Examiner that one of ordinary skill
in the art would have found it obvious to select cordierite as the ceramic
powder and mullet for the ceramic body.
As for separately argued claims 14, 27, and 28, which recite that the
porous ceramic body is a diesel particulate filter, appellants make the
argument that DiChiara does not disclose using the treated ceramic body as a
filter. However, inasmuch as the boron-treated porous ceramic body of
DiChiara reasonably appears to have essentially the same structure as
Appellants' boron-treated porous ceramic body, we find it reasonable to
conclude that the treated porous ceramic body of DiChiara is capable of
serving as a filter. It is well settled that when a product reasonably appears
to be substantially the same as a product disclosed by the prior art, the
burden is in the applicant to prove that the prior art product does not
necessarily or inherently possess characteristics attributed to the claimed
product. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA
1977). In the present case Appellants have not advanced any argument, let
alone the requisite objective evidence, that demonstrates that the boron-
treated porous ceramic body of DiChiara is not capable of functioning as a
diesel particulate filter.
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