Appeal No. 1999-2649
Application 08/483,291
induced phase change, and recoverable strains as
high as 17% have been observed.
Page 733, line 6, states that an early medical device (an
orthodontic brace) “exploits the superelastic behavior of
Nitinol.” We do not read these portions of Kirk-Othmer as
disclosing that all Nitinol exhibits superelastic (SIM)
properties, but only that “many” of the martensitic alloys do
“when deformed well beyond the point of the initial single-
coalesced martensite stage.” This is consistent with the
declaration of Dr. Middleman , a coinventor of the above- 3
listed ‘989 patent, that (para. 11, pages 3 to 4):
Although nitinol can exhibit the properties of an
SIM material it can do so only if it undergoes a
treatment process to make it exhibit the properties
of an SIM material. This process requires an
extensive, time consuming and expensive procedure.
In basing a rejection on the ground that the prior art
would inherently possess a claimed property, the examiner
bears the initial burden of establishing a prima facie case,
as by showing that the claimed and prior art products are
identical or substantially identical or are produced by
3 Declaration of Dr. Lee Middleman under 37 CFR § 1.132,
dated Feb. 2, 1998, filed Mar. 18, 1998.
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