Interference No. 101,981
U.S.C. § 112, Beyers never clearly states which provision has not
been met. In fact, after reviewing the brief (BeB 42-46), we
were unable to find any statement of the issues; no reason or
standard is articulated. Beyers (BeB 46) does however argue that
Batlogg 1) fails to teach the essential step of slow cooling; 2)
misdescribes the crystalline structure of their composition; and,
3) contains teachings of a single sample that are based on
commingling of data from at least two samples.
Beyers has the burden of showing by a preponderance of the
evidence that Batlogg’s claim 16 is unpatentable for failing to
meet the enablement requirement of 35 U.S.C. § 112. They must
demonstrate that there is a reason to doubt that the process set
forth in Batlogg can make the composition of Batlogg’s claim 16.
In re Marzocchi, 439 F.2d 220, 223, 169 USPQ 367, 369 (CCPA
1971). Beyers has failed to do this.
We are not persuaded by Beyers’ arguments. We find that
Beyers is focusing on their interpretation of the count rather
than on Batlogg’s claim 16. On the issue of crystalline
structure, Beyers (BeB 42) states that “it is necessary (but not
sufficient) to have an orthorhombic crystal structure to meet the
count.” However, the issue is not whether Batlogg enables the
count but whether they enable their claim 16. In fact, when
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