Appeal No. 2005-0528 Page 12
Application No. 10/178,143
Appellants argue that the claimed invention is distinguishable from Dietrich in that the
reference does not disclose the closed cell content. In support of this position Appellants argue
“[a]s those skilled in the art are aware, foam stabilizers will prevent foam bubbles from
collapsing during the hardening process and will therefore produce closed cell foams. Dietrich et
al. teach that such stabilizers are unnecessary (i.e. optional) and therefore one of ordinary skill in
the art could reasonably conclude that Dietrich et al. teach a foam with a low closed cell
content.” (Brief, p. 5).
The present record does not support Appellants’ argument. Appellants have not
identified how the components contained in Dietrich’s process differs from the components
specified in the subject matter of claim 6. On the present record, the Examiner has found that
Dietrich teaches the same components which are combined (reacted) in the same manner as
Appellants have done. Accordingly, the Examiner has met the initial burden of establishing a
prima facie case of unpatentability under section 103. Therefore, the burden has been shifted to
Appellants to show that the claimed product produced differs substantially from the product
disclosed by Dietrich. 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 any evidence that the product of Dietrich is substantially different than the
product resulting from the claimed process. It appears that Appellants are inferring that the
subject matter of claim 6 requires the presence of an additional component, i.e., stabilizer, to
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