Appeal 2007-1195
Application 10/381,340
this standard, the evidence must demonstrate that it is more likely than not that the
alleged fact is the case. See Bosies v. Benedict, 27 F.3d 539, 541-42, 30 USPQ2d
1862, 1864 (Fed. Cir. 1994) (the preponderance of the evidence standard requires
the finder of fact to believe that the existence of a fact is more probable than its
nonexistence). In this instance it is impossible to know the shape of Jenny to a
preponderance of the evidence, and thus the Examiner has failed to sustain his
burden of proof with respect to cutting edges.
Claims 1, 3, and 4 are argued separately. Claims 2, 5 and 7 fall with claim 1.
ANALYSIS
Turning first to the scope of claim 1, we note that Appellants argue that
Jenny does not disclose a side lip with a cutting edge. However, this argument is
not commensurate in scope with the claimed subject matter in that the side lips as
recited in claim 1 are not required to possess cutting edges in the claim. The
argument in the Brief at page 5 is merely an attempt to import material from the
specification into the independent claim on appeal. While we agree with
Appellants’ argument that the Examiner has not shown by a preponderance of the
evidence that Jenny discloses side lips with cutting edges, claim 1 does not so
require and thus is seen to lack novelty over the Jenny reference, as do claims 2, 5
and 7. The rejection of claim 3 on the lack of novelty ground is reversed, inasmuch
as claim 3 actually requires cutting edges.
With respect to claim 4, we are in agreement with the Appellants that the
Examiner has articulated no reason why one of ordinary skill would have used the
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