Appeal No. 96-0008
Application 08/243,428
reference formula when n is 2 or greater. For legal support
of their position, appellants cite In re Hoeksema 399 F.2d,
269, 158 USPQ 596, 600 (CCPA 1968) and In re Legrice 301 F.2d
929, 133 USPQ 365 (CCPA 1962). For scientific evidence in
support of their position, appellants rely upon declarations
of Carl George Krespan, Ming-Hong Hung, and Alicia P. King as
well as an article by L.D. Moore, the abstract of European
Patent Application 438,166 to
Q.Y. Chen et al., and a translation of an article by T.I.
Gorbunova et al.
On the other hand, the examiner essentially relies upon
the presumption of validity accorded to the Ohmori patents.
The examiner's position is stated at page 7 of the answer as
follows:
While the data presented allegedly may provide
evidence to the inoperability of the patent, it is
presumed that a process if used by one skilled in
the art will produce the product or result described
therein, such presumption is not overcome by a mere
showing that it is possible to operate within the
disclosure without obtaining the alleged product.
It is to be presumed also that the skilled worker
would as a matter of course, if they do not
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