Appeal No. 2006-1218
Application No. 10/601,884
is maintained for a time period of 30 minutes (Specification,
page 11) which is fully encompassed by Sellers’ heating time
period of 30 minutes to 3 hours. From Appellants’ own
disclosure one can justifiably find or conclude Sellers’ higher
temperatures and heating time period would necessarily and
inherently result in removing the LiF sintering aid from his
spinel product such that the product is “essentially devoid of a
sintering aid” (appealed independent claims 1 and 19).
In light of the foregoing, there is a basis in fact for
believing that Sellers’ product is identical to Appellants’
claimed product at least relative to the one and only
“distinction” argued in the brief. Accordingly, the burden of
proof has shifted to Appellants to show that patentee’s product
does not possess the same characteristics as the here claimed
products. Best, 562 F.2d at 1255, 195 USPQ at 433. Appellants
have failed to fulfill their burden by providing any such
evidence of record.
In response to the Examiner’s answer, Appellants filed a
reply brief. In the reply brief, Appellants refer to the non-
entered declaration that was filed April 20, 2005 and attach a
handout that was given to the Examiner during an April 1, 2005
interview. It is improper for Appellants to refer to
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