Appeal No. 2002-0196
Application No. 08/952,913
In the rejection of the appealed claims, the examiner relies
upon the following reference:
Tsao 4,002,719 Jan. 11, 1977
Appellants' claimed invention is directed to agglomerated
basic cobalt (II) carbonate having a spheroidal habit and an
average diameter of 3 to 50 :m.
Appealed claims 1-3 and 20-23 stand rejected under 35 U.S.C.
§ 102(b) as anticipated by or, in the alternative, under
35 U.S.C. § 103 as being unpatentable over Tsao.
We have carefully reviewed the respective positions advanced
by appellants and the examiner. In so doing, we concur with
appellants that the examiner has not established a prima facie
case of anticipation/obviousness. Accordingly, we will not
sustain the examiner's rejection.
When, as here, a product is claimed by either its properties
or its process of preparation, the examiner can make out a prima
facie case of anticipation/obviousness when the prior art
evidence provides sufficient facts upon which to reasonably
conclude that the prior art product has the same or substantially
the same properties as the claimed product. In re Spada,
911 F.2d 705, 708, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990); In re
Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). In the
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