Appeal No. 95-4440
Application 07/841,707
less disclosure of any characteristics which are attributable
to pullulan produced by mutants of the A. pullulans strains
which the prior art discloses. Moreover, the examiner now
states (communication from the EXAMINER in charge (Paper No.
23), p. 2, para. 2), “The difference between the claimed
mutant strains and the strains disclosed by the prior art of
record cannot [be] ascertained.” Accordingly, faced with the
initial burden to establish a prima facie case of
unpatentability under 35 U.S.C.
§ 102 or 103, the examiner now points to less evidence than
that evidence which had been relied upon to support the
rejection which the examiner withdrew.
We are constrained to reverse the examiner’s rejections.
The examiner has the initial burden to establish
unpatentability. The rejections in this case are not supported
by sufficient
evidence. In re Wilder, 429 F.2d 447, 166 USPQ 545 (CCPA
1970), places cases such as the one before us in proper
perspective
at 450, 166 USPQ at 548:
If an applicant had to prove novelty before he could
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Last modified: November 3, 2007