Appeal No. 2005-1087
Application No. 10/175,587
examiner’s viewpoint that the coacervation shell described in the
Chopra references and the micelle shell recited in appealed claim
11 are indistinguishable.2
Because the prior art coacervation shell and the here
claimed micelle shell appear to be indistinguishable, we consider
it appropriate to require that the appellants prove a distinction
actually exists between the here claimed and prior art shells.
This requirement is especially appropriate in this case due to
the fact that the Chopra patents and the subject application are
all assigned to the same real party of interest (i.e., Xerox
Corporation). The fairness of so allocating the burden of proof
is evidenced by the inability of the Patent and Trademark Office
to manufacture products or to obtain and compare prior art
products. See In re Best, 652 F.2d 1252, 1255, 195 USPQ 430,
433-34 (CCPA 1977).
2
2According to Webster’s II New Riverside University Dictionary
(1984): “coacervate” is defined as “a cluster of droplets
separated out of a lyophilic colloid,” and “micelle” is defined
as “a submicroscopic aggregation of molecules, as a droplet in a
colloidal system.”
-4-
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