Ex Parte Carey et al - Page 10

                Appeal 2007-0746                                                                                
                Application 10/139,496                                                                          
                product appearing to be the same as that claimed, even though made by a                         
                different process, the burden shifts to the applicant to prove otherwise.  See                  
                id. at 697, 227 USPQ at 966.                                                                    
                       Based upon the above, we affirm the § 102(b) rejection of claim 1.                       
                       Appellants’ arguments with respect to the § 103(a) rejection of claim                    
                10 mirror those made with respect to the § 102(b) rejection.  Thus, we also                     
                affirm the rejection of claim 10 under § 103(a).                                                

                                               CONCLUSION                                                       
                       In summary, we affirm the rejection of claim 1 under § 112, ¶ 1, and                     
                § 102(b).  We also affirm the rejection of claim 10 under § 103(a).                             
                       Pursuant to § 41.37(c)(1)(vii)(2006), we also affirm the rejection of                    
                claims 4-8, and 10 under § 112, ¶ 1; and claims 4-8 under § 102(b), as these                    
                claims were not argued separately.                                                              
                       No time period for taking any subsequent action in connection with                       
                this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv)(2006).                            

                                                 AFFIRMED                                                       


                lbg                                                                                             
                MEDLEN & CARROLL, LLP                                                                           
                101 HOWARD STREET                                                                               
                SUITE 350                                                                                       
                SAN FRANCISCO CA 94105                                                                          





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