Appeal No. 2002-0984
Application 09/246,179
skill in the art, to encompass at least one reasonably definite
meaning which enables us to review the prior art in the context
of what appellants’ claims reasonably may be said to embrace. See
In re Wilson, 424 F.2d 1382, 1385, 165 USPQ 494, 496 (CCPA 1970).
In finding an applicant for patent is not entitled to a
patent, the PTO (the examiner) bears the burden of proving lack
of entitlement whether under 35 U.S.C. § 101, § 102, § 103 or §
112. The examiner's burden or proof in denying a patent to an
applicant for patent, except for issues of "fraud" or "violation
of the duty of disclosure" which requires clear and convincing
evidence, is by a preponderance of the evidence. In re Caveny,
761 F.2d 671, 674, 226 USPQ 1, 3 (Fed. Cir. 1985). A
preponderance of the evidence has been defined as a standard
which only requires the fact finder :
to believe that the existence of a fact is more probable
than its nonexistence before [he] may find in favor of the
party who has the burden to persuade the [judge] of the
fact's existence.
Boises v. Benedict, 27 F.3d 539, 541-42, 30 USPQ2d 1862, 1864
(Fed. Cir. 1994), quoting from In re Winship, 397 U.S. 358, 371-
72 (1970).
The examiner's rejection is founded on evidence in the
nature of the patents and the literature reference on which he
has relied to reject the claims. Additionally, the examiner has
relied on "Examiner's Notice" in support of his rejection.
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