Appeal No. 1998-2732
Application No. 08/244,163
Under 35 U.S.C. ' 103, the initial burden of establishing a
prima facie case of obviousness rests on the examiner. In re
Piasecki, 745 F.2d 1468, 1471-72, 223 USPQ 785, 787-88 (Fed.
Cir. 1984). In this case, it is our determination that the
examiner has not met the initial burden of proof.
The examiner found that Russell describes a two-layered
fuel tube comprising of an inner barrier layer coextruded with
an outer layer. (Id. at page 4.) According to the examiner,
Russell teaches that “the inner barrier layer is nylon and the
outer layer is an ethylene-based polymer...” (Id.) The
examiner further found that Russell teaches the use of other
polymeric materials for the outer and/or inner layers. (Id.)
Nevertheless, the examiner admitted that Russell’s tube
differs in two respects. (Id.) First, the examiner determined
that Russell does not teach the appellants’ claimed first layer.
Second, the examiner also acknowledged that Russell does not
teach the appellants’ claimed second layer.
To account for these significant differences between the
invention recited in appealed claim 1 and Russell’s tube, the
examiner relied on Preto and the appellants’ admitted prior art.
Regarding Preto, the examiner found that this reference teaches
a polyolefin/polyamide blend comprising 10 to 60% by weight of
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