Appeal No. 1998-1146 Page 10
Application No. 08/410,177
USPQ 90, 100 (CCPA 1976); Ex parte Lee, 31 USPQ 1105, 1106
(Bd. App. & Int. 1993). Additionally, we observe that the
azeotropic property simply does not serve to distinguish over
the applied prior art, when, as here, it is inherently or
intrinsically possessed by the prior art exemplified
composition. See In re Best, 562 F.2d 1252, 1255, 195 USPQ
430, 433-434 (CCPA 1977). Moreover, when a claimed product
appears to be identical or substantially identical, the burden
is on appellants to prove that the product of prior art does
not possess characteristics attributed to the claimed product.
See In re Spada, 911 F.2d 705, 708-709, 15 USPQ2d 1655, 1658
(Fed. Cir. 1990). In this regard, we note that the making of
the particular tested compositions of each of the applied
references was purposeful to obtain useful information on the
properties of such mixtures and not mere happenstance or
accidental as apparently urged by appellants. Appellants
reference to an election/restriction requirement at page 9 of
the brief is noted. However, the propriety of the rejections
made by the examiner is before us for review, not the
propriety of any election or restriction requirement that may
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
Last modified: November 3, 2007