Appeal No. 2005-1608 Page 7 Application No. 10/424,327 membrane fabric suggested by the prior art has the same or substantially the same structure and properties that would be present in a membrane fabric that is pre-shrunk as claimed. Under the circumstances, we agree with the Examiner that it is reasonable to conclude that the fabric structure suggested by the prior art combination has the same or a substantially similar structure to that claimed. Because the PTO does not have the facilities to test the claimed structure and compare it to the structures of the prior art, it is eminently fair and reasonable to shift the burden to Appellants to show that the claimed structure is, indeed, patentably different from the structure of the prior art. Best, 562 F.2d at 1255, 195 USPQ at 433-34; Brown, 459 F.2d at 535, 173 USPQ at 688. We conclude that the Examiner has established a prima facie case of obviousness with respect to the subject matter of claims 1-20 which has not been sufficiently rebutted by Appellants. In fact, the rejection could have been based on anticipation by Akasu. Note that anticipation is the ultimate or epitome of obviousness. In re Fracalossi, 681 F.2d 792, 794, 215 USPQ 569, 571 (CCPA 1982). CONCLUSION To summarize, the decision of the Examiner to reject claims 1-20 under 35 U.S.C. § 103(a) is affirmed.Page: Previous 1 2 3 4 5 6 7 8 9 10 NextLast modified: November 3, 2007