Appeal 2006-1593
Application 09/737,413
to prove that the subject matter shown to be in the
prior art does not possess the characteristic relied on.
Here, we determine that the correspondence between the fuser
structure of Badesha ‘643 and the structure required by representative
appealed claim 20 furnishes sufficient reason to believe that the fuser of
Badesha ‘643 possesses the functional limitation(s) that, from Appellants’
perspective, would be required by the claimed appellation “transfix
member.” This is so since the structures of the claimed device and the
applied fuser of Badesha ‘643, including the outer layer thereof, appear to be
identical or substantially identical. Therefore, even if we could agree with
Appellants that representative claim 20 requires a transfer functionality as
argued, the burden would then shift to Appellants to show that the fuser of
Badesha ‘643 does not possess the argued intrinsic functionally allegedly
required of the claimed transfix member. Appellants, however, failed to
carry this burden.
CONCLUSION
The decision of the Examiner to reject claims 1-10 and 13-21under
35 U.S.C. § 103(a) as being unpatentable over Badesha ‘643 in view of
Swift and to reject claims 1-17, 20 and 21 under
35 U.S.C. § 103(a) as being unpatentable over Badesha ‘643 in view of
Badesha ‘504 is affirmed.
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