Appeal No. 2003-0090 Page 5
Application No. 09/006,379
under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and its fairness is
evidenced by the inability of the examiner to manufacture products or to obtain and compare
prior art products. Id.; see also In re Brown, 459 F.2d 531, 535, 173 USPQ 685, 688 (CCPA
1972).
As Appellants provide no showing that the claimed film is, in fact, necessarily different
than the film of Schrenk, we conclude that the Examiner has established a prima facie case of
unpatentability which has not been sufficiently rebutted by Appellants.
CONCLUSION
To summarize, the decision of the Examiner to reject claims 21-25, 27-34, and 56 under
35 U.S.C. § 102(b) or, in the alternative, under 35 U.S.C. § 103 is affirmed.
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