Appeal No. 2006-1692 Παγε 16
Application No. 10/068,243
because the roller of Thompson is for use in an aircraft roller
and is from a super-tough nylon, that the roller will inherently
have the characteristics required for being used in the airline
industry, as recited in claims 7, 10 and 13. Because the super-
tough nylon of Thompson is of the material claimed, is used for
the same purpose, and is used in the same environment as the
claimed roller, we find that the disclosure of Thompson is
sufficient to establish a prima facie case of anticipation of
claim 7 and shift the burden for production of evidence to
appellant to show that the roller of Thompson would not
inherently have the claimed burn rate.
Where the claimed and prior art products are identical
or substantially identical in structure or composition,
or are produced by identical or substantially identical
processes, a prima facie case of either anticipation or
obviousness has been established. In re Best, 562 F.2d
1252, 1255, 195 USPQ 430, 433 (CCPA 1977). “When the
PTO shows a sound basis for believing that the products
of the applicant and the prior art are the same, the
applicant has the burden of showing that they are not.”
In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655,
1658(Fed. Cir. 1990). Therefor, the prima facie case
can be rebutted by evidence showing that the prior art
products do not necessarily possess the characteristics
of the claimed product. In re Best, 562 F.2d at 1255,
195 USPQ at 733. See also Titanium Metals Corp. V.
Banner, 778 F.2d 775, 227 USPQ 773(Fed. Cir. 1985).
We are not persuaded by appellant’s assertion (brief, page
7) that Thompson teaches that his polymer is not capable of
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