Appeal No. 2004-0864
Application No. 09/850,924
We have carefully reviewed the appellants’ position and the
examiner’s position on this issue. Critical to the determination
of this issue is the meaning of the phrase “located approximately
at the vertical transverse plane” [emphasis added]. It is
disputed whether Welsch discloses a windrower grouper arrangement
having a rear end “located approximately at the vertical
transverse plane”. Brief, page 5.
Appellants’ specification states that the conveying
arrangement 32 “is then only slightly to the rear of the mowing
implement 10 so that endwise transport of the mowing implement 10
and grouper arrangement 12 over the road is possible within the
legal limits”. See page 5 of the specification, lines 7 through
9. Figure 2 also depicts an example of such a location of the
conveying arrangement 32. We interpret the claimed phrase
“located approximately at the vertical transverse plane” in light
of these aspects of the specification.
We note that the initial burden of presenting a prima facie
case of unpatentability on any ground rests with the examiner.
See In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444
(Fed. Cir. 1992). It is therefore the examiner’s burden to
explain how Welsh satisfies the above mentioned aspect of the
claim. For example, it is the examiner’s burden to show that the
location of grouper attachment 12 relative to harvestor 10 (as
depicted in Welsch’s Figure 3 in the first operating mode),
anticipates this aspect of appellant’s claim. The examiner fails
to meet this burden. In fact, on page 8 of the answer, the
examiner incorrectly places this burden on appellants by stating
“[a]pplicant’s argument does not explain how Welsch doesn’t meet
the actual claim language”.
In view of the above, we reverse the anticipation rejection.
III. Conclusion
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