Appeal No. 2001-1820
Application No. 09/169,280
the alkoxy groups, the hydrolysis stabilization, the covalent
bonding of the alkoxyzirconium to the surface, the protection
from space environments, etc. (Answer, paragraph bridging pages
3-4). However, the examiner concludes that the claimed subject
matter would have been obvious since Philipp teaches the process
of coating with a coating solution which overlaps the composition
recited in the claims, and therefore one of ordinary skill in
this art would have expected the product of the reference to be
the same or similar to the claimed product, including all of the
noted properties (Answer, page 4). We agree.
First we must note the format of claims 1 and 24 on appeal.
Claims 1 and 24 are directed to methods of applying a coating and
include product-by-process limitations in reciting the
composition of the sol applied. Accordingly, for the product-by-
process portion of the claim, the examiner has a lesser burden of
proof in presenting evidence that the prior art product
reasonably appears to be the same or similar to that claimed.
See In re Fessman, 489 F.2d 742, 744, 180 USPQ 324, 326 (CCPA
1974); In re Fitzgerald, 619 F.2d 67, 70, 205 USPQ 594, 596 (CCPA
1980). Here we determine that the examiner has met the lesser
initial burden of establishing that the product sol, as well as
every step of the process, is reasonably the same or similar to
4
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