Appeal No. 2005-1487
Application No. 10/383,781
allowed claims in other applications are not considered in
reviewing the rejection on appeal (see the Reply Brief, page 4).
See In re Gyurik, 596 F.2d 1012, 1018 n.15, 201 USPQ 552, 558
n.15 (CCPA 1979).
Since we determine that the examiner has met the initial
burden of proof, this burden thus shifts to appellant to show
that the products are not the same. See Spada, 911 F.2d at 708,
15 USPQ2d at 1658. Therefore we consider appellant’s evidence,
submitted as Table I on page 3 of the Brief (reproduced from page
4 of appellant’s specification), as the showing which attempts to
establish that the product of Lunsford is not the same as the
claimed product. However, this evidence is not persuasive for
several reasons. First, as correctly noted by the examiner
(Answer, page 4), the results in Table I are from only a
comparison of a 65/35 blend of aramid (Nomex) and FR rayon while
claim 9 on appeal (and Lunsford) are not so limited (see
Lunsford, col. 5, ll. 17-19). Secondly, appellant provides no
explanation of the results in Table 1, giving the comparative
results little or no meaning. Appellant does not identify the
processes by which the products of the “Invention” and the “Prior
1923). Furthermore, under the holding in Spada, supra, more than
mere identity of structure has been established.
6
Page: Previous 1 2 3 4 5 6 7 8 9 Next
Last modified: November 3, 2007