Appeal No. 1996-4036
Application 08/078,479
recited in the instant claims” (answer, pages 4, 5 and 6).
We cannot agree with the examiner’s position for the reasons advanced by appellant, and add
the following for emphasis. It clear from evidence in the specification that ethylene vinyl acetate
copolymers with the same or similar vinyl acetate content do not necessarily have the same
“polydispersity ratio” and there is no other evidence in the record that establishes that the ethylene vinyl
acetate copolymers forming the claimed film reasonably appear to be identical to the ethylene vinyl
acetate copolymers forming the film disclosed in the prior art. Accordingly, on this record, the
examiner has not made out a prima facie case of anticipation by establishing a “sound basis for
believing that the products of the applicant and the prior art are the same,” and thus the burden has not
shifted to appellant to present additional evidence “that they are not.” Spada, supra.
The examiner’s decision is reversed.
Reversed
JOHN D. SMITH )
Administrative Patent Judge )
)
)
)
CHARLES F. WARREN ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
CAROL A. SPIEGEL )
Administrative Patent Judge )
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