Appeal No. 1999-2229
Application No. 08/832,167
comprises less than about 6 mole percent alkoxylated unsaturates and/or less than
about 5 mole percent polyoxyalkylene diols).
In this last mentioned regard, the appellants point out that both Manary and
Polss teach that their compositions may be manufactured using conventional base-
catalyzed methods. According to the appellants, such base-catalyzed methods will
inherently and inevitably produce impurities in the form of the above noted unsaturates
and diols at concentrations higher than permitted by the appealed claims. As support
for this position, the appellants refer to their specification disclosure and to the several
references attached to their Brief.
Initially, we emphasize that it is appropriate for the appellants to bear the burden
of proving that the seemingly identical or substantially identical composition products of
Manary or Polss do not actually possess the low-impurity characteristic of the here
claimed composition product. The fairness of such a burden allocation is evidenced by
the inability of the Patent and Trademark Office to manufacture products or to obtain
and compare prior art products. See In re Best, 562 F.2d 1252, 1255, 195 USPQ 430,
433-34 (CCPA 1977).
We have carefully considered the evidence proffered by the appellants in
support of their position. From our perspective, however, this evidence as a whole
tends to support the examiner’s view, namely, that the “compositions of Manary and
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