Appeal No. 2002-2283
Application No. 08/882,513
reasonable case for unpatentability has been established by the
examiner may the burden of proof shift to applicants to show that
the subject matter claimed is different from, and unobvious in view
of, the applied prior art. Unlike the prior art over which
appellants’ claims stand rejected in this case, the prior art in
In re Brown, 459 F.2d 531, 173 USPQ 685 (CCPA 1972), disclosed a
product which reasonably appeared to be “either identical with or
slightly different than a product claimed.” Id. at 535, 173 USPQ
at 688. Here, the examiner presents nothing of the sort. The
examiner’s rejection here is eminently unfair and unacceptable.
The prior art the examiner applied does not make out a
prima facie case for the unpatentability of appellants’ claims.
Accordingly, we need not, and do not, consider appellants’ evidence
of unexpected results.
Conclusion
For the reasons stated herein above, it is
ORDERED that the examiner’s rejection of Claims 1-10, 20-22
and 26-31 under 35 U.S.C. § 103 is REVERSED.
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