Appeal No. 94-2527
Application 07/816,715
within or at least close to the here claimed range, the examiner has no reasonable
basis for believing that the prior art includes or would have suggested products which
necessarily or inherently possess the characteristics of the appellants’ claimed product.
This is because, in the absence of such a prior art teaching, it cannot be assumed that
the claimed and prior art products are identical or substantially identical, or are
produced by identical or substantially identical processes. Compare In re Best, 562
F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977).
In summary, because of the above discussed deficiencies of Japanese ‘764 and
because these deficiencies are not supplied by any of the other applied references, we
cannot sustain the examiner’s § 103 rejection of claims 11 and 12 as being
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