Appeal No. 2005-0646 Page 6
Application No. 10/278,184
inherently have a power density that falls within the range
recited in claim 15 when operated within the claimed voltage
range. The examiner’s position is that the device disclosed by
Lee will have the properties recited in claim 15 because it is
made from the same materials as disclosed by appellants and has
dimensions within the claimed range.
In our view, this position of the examiner appears
correct and establishes a prima facie case of anticipation. The
gist of appellants’ argument is that there is no evidence that
the resistor (heater) of Lee will operate as a heater at the
claimed voltage range. The requisite evidence, however, is the
fact that the materials and dimensions disclosed by Lee are the
same as the materials disclosed by appellants and the dimensions
claimed. There is a presumption, therefore, that the resistor of
Lee will have the same properties as the heater disclosed by
appellants. We view this as simply a question of who has met the
burden of providing persuasive evidence. Since the examiner’s
demonstration has established a prima facie case of anticipation,
the burden shifted to appellants to provide evidence to rebut the
examiner’s case. As noted above, appellants’ “evidence” consists
of nothing more than arguments by appellants’ representative that
the resistor of Lee may not operate in the same manner as the
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