Appeal No. 95-4648
Application No. 07/952,137
prior art products and make physical comparisons
therewith.
The Office has a lesser burden of proof in making out a case
of prima facie obviousness for product-by-process claims
because of their peculiar nature. See In re Fessman, 489 F.2d
at 744, 180 USPQ at 326.
Accordingly, the examiner must cite prior art which
discloses a product that reasonably appears to be identical to
or only slightly different than the claimed product to
establish a prima facie case of obviousness. We agree that
the examiner has met this burden. Kobayashi discloses a
molded article comprising a polyamide resin reinforced by
carbon fibers having lengths such as 12 mm (see Example 3 and
the Answer, pages 2-3).5 The molded article of Kobayashi is
made by processes where the polyamide (e.g., nylon) is mixed
with the reinforcing fibers and then molded (see column 4,
line 15 et seq., and Example 3) while appellants’ process
forms the polyamide in situ with the reinforcing fibers in the
5Kumazawa was applied by the examiner to show various features
of the dependent claims (see the Answer, page 3). Since the claims
stand or fall together with independent claim 28 (see the discussion
above), a discussion of Kumazawa is unnecessary to our decision.
5
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