Appeal No. 2004-1144
Application No. 09/584,765
On the record before us, the examiner has established a
prima facie case in support of his proposition that an artisan
with ordinary skill would have interpreted the “Ni50Al”
disclosure of Suzuki as describing alloys which contain equal
amounts of Ni and Al. Significantly, the appellant has provided
this record with no extrinsic evidence such as a declaration by
one skilled in this art (e.g., the appellant himself) in rebuttal
to the rationale and evidence proffered by the examiner. Under
these circumstances, it is our determination that the weight of
argument and evidence before us favors interpreting the Suzuki
disclosure in the manner proposed by the examiner.
This leads us to the ultimate determination that the
examiner has established a prima facie case of unpatentability
with respect to independent claim 33 and the rejected claims
which depend therefrom which the appellant has failed to
successfully rebut with argument and/or evidence of
patentability. See In re Oetiker, 977 F.2d at 1445, 24 USPQ2d at
1444. In summary, therefore, we likewise hereby sustain the
examiner’s section 103 rejection of claims 33-40, 42, 43, 45 and
4(...continued)
have been interpreted by those skilled in this art.
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