Appeal No. 2005-0095
Application No. 10/127,776
Appellants’ argument regarding the viscosity is not persuasive.
Appellants acknowledge that Niedbala recognizes the importance of low
viscosity. (Brief, p. 7). In fact, Niedbala discloses the viscosity of the
sunscreen composition is represented by the specific gravity of 0.90-1.05.
(Col. 3, ll. 1-3). Appellants have not discussed the viscosity of the present
invention based upon the specific gravity or provided a discussion of the
ranges of suitable viscosity disclosed in Niedbala in terms of cps. Where
the prior art reasonably appears to disclose a product that is identical with
or only slightly different from the product claimed, the burden is shifted to
Appellants to establish that the claimed product differs substantially from
the product disclosed by Niedbala. See In re Spada, 911 F.2d 705, 708, 15
USPQ2d 1655, 1657-58 (Fed. Cir. 1990); and In re Best, 562 F.2d 1252, 1255,
195 USPQ 430, 433-34 (CCPA 1977). Appellants have not submitted
evidence that the viscosity of Niedbala is substantially different from the
claimed invention. In fact Appellants have determined that example 2 of
Niedbala, specification page 37, has a viscosity of 130 cps. Thus, the
evidence comparing a composition with a viscosity of >5000 cps is not
representative of the closest prior art.
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