Appeal No. 98-2126 Page 11
Application No. 08/490,180
the impact force of the shot and the density of the green
compacts (i.e., tungsten carbide) is increased, the powdered
alloy of Keiji is impacted in order to increase the temperature
above the recrystallization temperature of the binder, just as
the appellant's powdered alloy is impacted in order to increase
the temperature "at least to the recrystallization temperature
of the binding agent" (see, e.g., claim 47). Accordingly,
there is a sound basis to conclude that Keiji's method
inherently forms surface-hardened metal shot as claimed.
Where, as here, there is a sound basis to believe that the
critical function may, in fact, be an inherent characteristic
of the relied-on reference, it is incumbent upon an appellant
to prove that the relied on reference does not in fact possess
the characteristics relied on. See, e.g., In re Spada, 911
F.2d 705, 708, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) and In re
Best, 562 F.2d 1252, 1254-55, 195 USPQ 430, 433 (CCPA 1977).
The appellant also notes on page 12 of the reply brief
that "Keiji simply references the recrystallization temperature
of a binder, and not that of a non-ferrous metal shot
material." There is, however, no claim limitation which
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