Appeal No. 1998-2534
Application No. 08/533,366
hysteresis data shows the behavior of a material under cyclic
loading conditions and Himelreich does disclose using cyclic
testing to determine dynamic creep of the net (id., citing
col. 12, l. 8 et seq.).
Appellant agrees with the examiner that Himelreich does
not disclose any determinations based on hysteresis
performance data and furthermore argues that there is no
teaching or suggestion in the reference to alter the method by
adding hysteresis analysis to achieve desired elasticity and
recovery properties of the extruded net strands (Brief, pages
7-9). Appellant also argues that the general statement by the
examiner that “hysteresis data shows the behavior of a
material under cyclic loading conditions” cannot substitute
for a specific suggestion in the reference (Brief, page 11).
Appellant submits that the dynamic creep testing taught by
Himelreich measures totally different properties than those
analyzed with hysteresis data (Reply Brief, page 2).
It is well settled that the initial burden of presenting
evidence to support a prima facie case of obviousness rests
with the examiner. See In re Oetiker, 977 F.2d 1443, 1445, 24
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