Appeal No. 2006-1356
Application No. 10/375,826
captures taint-compounds within the beverage, as claimed.
However, appellant has not refuted the examiner’s reasonable
conclusion that the polymeric material applied to corks and
bottles by WO ‘648 “will inherently react with taint compounds
such as TCA, not [sic, no] matter what their source is” (page 5
of answer penultimate paragraph. It is well settled that when a
claimed process reasonably appears to be substantially the same
as a process disclosed by the prior art, the burden is on the
applicant to prove that the prior art process does not
necessarily or inherently possess characteristics attributed to
the claimed process. 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 (CCPA 1977). In the present case, appellant has
not advanced a convincing rationale why the polymeric materials
of WO ‘648, including the polyethylene-based materials, would not
be reasonably expected to absorb taint-causing compounds within
the beverage contained in a bottle. Appellant has provided no
reason why the polymeric material of the reference, coated on
either a cork or a bottle, would not be expected to capture
taint-causing compounds within the beverage, as well as to serve
as a diffusion barrier for such compounds within the cork or
bottle wall.
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