Appeal No. 2006-0009 8
Reexamination Control No. 90/005,589
According to the appellant’s specification (col. 2, lines 25-28):
In general, the final heat treatment is performed in the range 560°C. to
620°C. when the alloy is to be in recrystallized state, and in the range 470°C. to
500° C. when the tube is to be used in relaxed state.
Sabol discloses that a final anneal is performed below 650°C., and preferably around
500°C. Sabol at col. 2, lines 22-24. According to Sabol, Figures 2A, B, C and D illustrate a
zirconium alloy tubing that has been stress-relief-annealed with a final anneal at 480°C., and
Figures 3A, B, C and D illustrate tubing of the same alloy that has been fully annealed at about
590°C. Sabol at col. 5, lines 13-20. Thus, the alloy illustrated in Figures 2A, B, C and D would
be expected to be in relaxed state, and the alloy illustrated in Figures 3A, B, C and D would be
expected to be in recrystallized state. Appellant has failed to establish otherwise. See In re Best,
562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) (where the claimed and prior art
products are produced by identical or substantially identical processes, the PTO can require an
applicant to prove that the prior art products do not necessarily or inherently possess the
characteristics of the claimed product). Therefore, the rejection of claims 2 and 3 under 35
U.S.C. § 103(a) as obvious over Sabol is also affirmed.
Claim 4 is dependent on claim 1. The appellant has not addressed the patentability of
claim 4 separately. See Brief at 4. Therefore, the rejection of claim 4 under 35 U.S.C. § 103(a)
as obvious over Sabol is also affirmed.
C. Rejection based on Anada
Claim 1 is rejected under 35 U.S.C. § 102(b) as anticipated by Anada. Anada discloses a
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