Appeal No. 2006-1101
Application No. 10/193,560
on a zipper, this functional recitation in the appealed claims
of a new intended use for old structure does not make the claims
to the old structure patentable. Id. As explained above and in
the Answer, the examiner has a reasonable basis for considering
the prior art structure to be capable of performing the
functional use recited in the appealed claims and therefore has
established a prima facie case of anticipation. Id., 128 F.3d
at 1477, 44 USPQ2d at 1432. Moreover, the appellants have
failed to overcome this prima facie case by showing that the
prior art structures of the applied references do not inherently
possess the functional capabilities recited in the rejected
claims. Id. The aforementioned expression by appellants of a
contrary viewpoint without embellishment falls far short of the
showing necessary to overcome the examiner's prima facie case.
In light of the foregoing, we hereby sustain each of the
§ 102 rejections advanced by the examiner based on the Diez,
Fukuyama, Marbach and Linkiewicz references. We also hereby
sustain each of the examiner's § 103 rejections since they have
not been contested by the appellants separately from the § 102
rejections (see pages 7 and 8 of the Brief) as correctly
observed by the examiner (see page 12 of the Answer).
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