Appeal No. 95-3734
Application No. 08/043,620
regards as the invention" (Examiner's Answer, page 5, first
paragraph).
DELIBERATIONS
Our deliberations in this matter have included evaluation
and review of the following materials: (1) the instant
specification, including all of the claims on appeal; (2) the
Appeal Brief; (3) the Examiner's Answer; (4) the above-cited
references relied on by the examiner; (5) the Sommerfeld
Declaration executed November 18, 1992; (6) the Schadt
Declaration executed December 2, 1992; (7) the Schadt
Supplemental Declaration executed February 4, 1993; and (8) the
Sperling Declaration executed December 22, 1993.
On consideration of the record, including the above-listed
materials, we reverse the examiner's rejections.
DISCUSSION
In setting forth the prior art rejection of claims 1 through
23, 40 through 42, and 99, the examiner argues that the claimed
and prior art products reasonably appear to be identical or
substantially identical, or are produced by identical or
substantially identical processes. Under these circumstances,
the examiner argues, the Patent and Trademark Office (PTO) can
require appellants to prove that the prior art products do not
necessarily or inherently possess the characteristics of their
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