Appeal No. 2004-0842
Application No. 09/539,454
page 6, line 5 of Perkins. In other words, we determine that the
functionally defined position of the claimed lid system embraces
the location of Perkins’ upper mould part 3.
The appellants argue that Perkins does not teach that its
upper mould part 3 “is of sufficient weight such that [formers 8]
compress the dough portions as the dough portions rise” as
required by claim 46. See the Brief, pages 9-10 and the Reply
Brief, page 4. We do not agree.
It can be inferred from Perkins that the formers 8 of the
upper mould part 3 provide some compression to the rising dough
in the concavities 5 of the lower mould part 2 as indicated
supra. Moreover, Perkins teaches that its upper mould part 3 is
made of the same material as the claimed lid system. Compare
Perkins, 3, line 35 to page 4, line 4, with the specification,
page 15. Thus, it is reasonable to conclude that the weight of
Perkins’ upper mould part 3 is sufficient to provide some
compression to the rising dough in the concavities of its lower
mould part 2 as required by the claims on appeal. The burden is
on the appellants to demonstrate that the weight of the claimed
lid system as defined by the claimed functional language is
patentably different from that of Perkins’ upper mould part 3.
In re Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d 1429, 1432 (Fed.
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