Appeal No. 2001-1231
Application No. 08/976,371
appellants, has a reduced structure which may be produced by use
of potassium compounds in the formation of the carbon black (see
Warner, col. 12, ll. 1-5, and the specification, page 17, ll. 4-
10). Therefore we determine that the amount of low structure
ellipsoidal aggregates4 of Warner would have reasonably appeared
to be the same or substantially the same as the claimed amount.
Accordingly, we determine that the burden of proof has shifted to
appellants to submit convincing evidence or arguments to show
that the claimed products are different than those of the prior
art. See In re Spada, 911 F.2d 705, 708, 15 USPQ2d 1655, 1657
(Fed. Cir. 1990); In re Best, 562 F.2d 1252, 1255, 195 USPQ 430,
433 (CCPA 1977).
Appellants assert that they have met the burden of proof by
submitting the Declaration under 37 CFR § 1.132 by Ronald A. Swor
dated Feb. 12, 1998 (hereafter the “Swor Declaration”; see the
Brief, pages 6-10). We determine that the evidence submitted as
the Swor Declaration and appellants’ arguments are not persuasive
for reasons stated in the Answer (pages 4-5) and those reasons
set forth below.
4 As disclosed by appellants on page 9, ll. 20-25, of the specification,
four shape categories are defined for carbon black aggregates, including low
structure ellipsoidal aggregates.
8
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