Appeal No. 1998-0123
Application No. 08/251,575
examiner bears the initial burden of presenting objective
evidence to support the conclusion that the claimed and prior
art products are substantially the same. In the present case,
appellants have substantively challenged the examiner's
finding that hardness due to carbonitriding is related to the
diffused nitrogen concentration. Appellants submit at page 10
of the Brief that "[t]here is no objective evidence in the
record of this alleged relationship between N gradient and
)HRC" and "[t]here is no evidence in the record that hardness
variation depends only on N concentration and nothing else"
(page 11 of Brief). Also, appellants illustrate Figure D at
page 13 of the Brief for demonstrating that "it is difficult
to discern any relationship between nitrogen content and
hardness, for those few examples in Furumura which actually
contain nitrogen" (page 13 of Brief).
In addition, there is no evidence that the rolling
bearings of the cited references are prepared in the same
manner disclosed in appellants' specification, such that a
reasonable conclusion can be drawn that substantially the same
processes of preparation produce substantially the same
rolling bearing. Appellants disclose the following process
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