Appeal No. 95-3209
Application No. 08/020,304
Under these circumstances, we consider it fair to require the
appellants to prove that patentee’s Example 1 material is not
in at least a partially molten state at this 910EC
temperature. Whether the rejection is based on “inherency”
under 35 U.S.C. § 102, on “prima facie obviousness” under 35
U.S.C. § 103, jointly or alternatively, the burden of proof is
the same, and its fairness is evidenced by the inability of
the Patent and Trademark Office to manufacture products or to
obtain and compare prior art products or their methods of
manufacture. In re Best, 562 F.2d 1252, 1254-1255, 195 USPQ
430, 433-434 (CCPA 1977).
For the above stated reasons, we will sustain the
examiner’s § 103 rejection of claims 1, 2, 6, 8, 11, 15 and 18
as being unpatentable over Yamamoto in view of the admitted
prior art.
The Rejection based on Yamamoto, the Admitted Prior Art
and Takizawa
We agree with the examiner’s conclusion that it would
have been obvious for one with ordinary skill in the art to
provide the method of Yamamoto with a die or roller heating
step in order to obtain the benefits of this technique which
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