Interference No. 101,981
looking only at Batlogg’s claim, Beyers appears to agree that
enablement exists. On the issue of “slow cooling”, Beyers (BeR
31) states that: “[p]assive oven cooling, i.e., merely turning
the oven off and allowing the samples to cool, may yield an
‘acceptable’ end result if all it is that one desires is to make
a composition that is 90% orthorhombic.” Since this is all that
Batlogg’s claim 16 requires, Beyers would agree that a lack of
disclosure of a “slow cooling” step, or a more specific crystal
structure, does not suggest that one cannot make the composition
of claim 16.
Beyers (BeB 25-27) also directs our attention to samples
which were prepared according to Batlogg’s specification (only
difference was that some were slow cooled to improve
homogeneity). All were YBa2Cu307-x. Since this is what Batlogg’s
claim 16 covers, Beyers’ experiments demonstrate that one with
skill in this art can make Batlogg’s claimed composition.
Beyers has not, therefore, raised any doubts about the
objective truth of the manufacturing process Batlogg discloses in
their application and therefore have not met their burden. As a
result, we find that Batlogg complies with the enablement
provision of 35 U.S.C. § 112 and agree with the APJ’s denial of
the preliminary motion on this issue.
56
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