Appeal 2007-3962
Application 10/005,846
and intended use of the sheets. Therefore, the burden has shifted to
Appellants to show, in fact, that the permeability is indeed outside the
claimed range. See In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433
(CCPA 1977) (When a claimed product appears to be substantially identical
to a product disclosed by the prior art, the burden is on the Applicants to
prove that the product of the prior art does not necessarily or inherently
possess characteristics or properties attributed to the claimed product.); In re
Skoner, 517 F.2d 947, 950, 186 USPQ 80, 82 (CCPA 1975) (Merely
choosing to describe an invention in a different manner does not render a
method patentable).
Claim 9
While Appellants have not established a reversible error with respect
to the rejection of claims 1 and 8, they have established that such an error
was made with respect to claim 9.
Turning to claim 9, we note that this claim is directed to a diffusion
membrane comprising “a dry stretched microporous sheet.” As found by the
Examiner, Kondo describes biaxially stretching the sheet with tenters
(Kondo ¶ 0018). The Examiner finds that this is a dry stretch process
meeting the requirements of Appellants’ claim (Answer 4). Appellants
contend that the claimed “dry stretched” sheet is different from the sheet of
Kondo because Kondo forms the micropores by extracting a plasticizer from
the sheet rather than forming the pores by dry stretching, the two processes
resulting different physical structures (Reply Br. 9-10). As evidence that the
structures are different, Appellants rely upon the disclosure of the dry stretch
or Celgard® process described in “Synthetic Polymer Membranes, A
11
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
Last modified: September 9, 2013