Appeal No. 2006-0885
Application No. 10/168,883
Appellants argue that the Examiner’s rejection of the claims is not
based on anticipation, thus the Examiner has improperly attempted to
shit the burden to Appellants to distinguish the claimed invention. (Brief,
pp. 5-8).
It is well settled that when a claimed product reasonably appears
to be substantially the same as a product disclosed by the prior art, the
burden is on the Appellants to prove that the prior art product does not
necessarily or inherently possess characteristics attributed to the claimed
product. In re Spada, 911 F.2d 705, 708, 15 USPQ2d 1655, 1658 (Fed. Cir.
1990); In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433-34 (CCPA 1977).
However, it is also fundamental that the Examiner bears the initial burden
of presenting objective evidence to support the conclusion that the
claimed and prior art products are substantially the same. In the present
case, Appellants have not substantively challenged the Examiner's
finding that Levy’s invention possessed a similarity in the average
diameter of the polypropylene fiber and the basis weight of the barrier
fabric to the claimed invention. Appellants have not asserted that the
leakage under 1 psi of pressure, air permeability value, and moisture
breathability value properties were not related to the properties of Levy
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