Appeal 2006-0931
Application 10/312,054
Having determined that the Examiner has reason to believe that the prior art
cation-exchangers are identical or substantially identical to the claimed cation-
exchangers, the burden is shifted to the Appellants to prove that the cation-
exchangers described in Carbonell and Berglund do not possess the claimed
functions. However, on this record, the Appellants have not demonstrated that the
cation-exchangers described in Carbonell and Berglund are not capable of
performing the claimed functions. In re Yanush, 477 F.2d 958, 959, 177 USPQ
705, 706 (CCPA 1973); In re Casey, 370 F.2d 576, 580, 152 USPQ 235, 238
(CCPA 1967); In re Otto, 312 F.2d 937, 939, 136 USPQ 458, 459 (CCPA 1963).
The Appellants’ mere assertion that the cation-exchangers described in Carbonell
and Berglund do not possess the claimed functions is not sufficient absent
supporting objective evidence. In re De Blauwe, 736 F.2d 699, 705, 222 USPQ
191, 196 (Fed. Cir. 1984); In re Lindner, 457 F.2d 506, 508, 173 USPQ 356, 358
(CCPA 1972).
Thus, based on the totality of the record, we determine that the
preponderance of evidence weighs heavily in favor of anticipation within the
meaning of 35 U.S.C. § 102 (a) and § 102(b). Accordingly, we affirm the
Examiner’s decision rejecting the claims on appeal under 35 U.S.C. § 102(a) and
§ 102(b).
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