Appeal No. 2001-2168
Application No. 09/083,307
filter membrane pore size range of 0.03-0.07 microns
(column 4, lines 63-64) and a filter membrane thickness of
less than 25 microns and preferably less than 10 microns
(column 5, lines 12-13). This prior art disclosure
constitutes description of a membrane filter having a pore
size corresponding to appellant’s pore size, namely 0.03
microns, and a thickness corresponding to appellant’s
thickness, namely less than 25 microns and preferably less
than 10 microns.
Thus, there is sufficient basis in fact and/or
technical reasoning to reasonably support the determination
that the inherent characteristic of a 120,000 dalton cutoff
for Lentz’s filter necessarily flows from Lentz’s teaching
of the filter pore size and the filter thickness set forth
above. See Best 562 F.2d at 1255, 195 USPQ at 433, Ludtke
441 F.2d at 664, 169 USPQ at 566, and Ex parte Levy, 17
USPQ2d 1461, 1464 (Bd. Pat. App. & Int. 1990). The burden
therefore shifts to appellant to prove that the subject
matter shown to be prior art does not possess the filter
cutoff characteristic of appellant’s claimed invention.
See In re King, 801 F.2d 1324, 1327, 231 USPQ 136, 138
(Fed. Cir. 1985) and Best 562 F.2d at 1255, 195 USPQ
7
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