Appeal No. 98-1314
Application No. 08/421,640
37), (2) the substrate and securing means leading region "can
provide" a total composite Gurley stiffness within the claimed
range (see page 38) and (3) "[f]or example, the securing means
leading region 59 can provide for a peel removal force which
is greater or less that the peel removal force provided for by
the securing means trailing region 61" (page 39, emphasis
added). Additionally, with respect to the peel removal force
set forth in claims 14, 15, 33 and 34, the area of attachment
of leading region of the fastener in the embodiment of Fig. 10
of Flug is illustrated as being significantly less than the
attachment area of the fastener's trailing region. This being
the case, there is a sound basis to conclude that in Flug the
peel strength of the leading region is less than the trailing
region as claimed.4
4Where, as here, there is a sound basis to believe that
the critical function for establishing novelty in the claimed
subject matter may, in fact, be an inherent characteristic of
the prior art device (i.e., Flug), it is incumbent upon the
appellants to prove that the device of Flug does not in fact
possess the characteristics relied on. See, e.g, In re
Schreiber, 128 F.3d 1473, 1478, 44 USPQ2d 1429, 1432 (Fed.
Cir. 1997); In re Spada, 911 F.2d 705, 708, 15 USPQ2d 1655,
1658 (Fed. Cir. 1990); In re Ludtke, 441 F.2d 660, 664, 169
USPQ 563, 566-67 (CCPA 1971) and In re Swinehart, 439 F.2d
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