Appeal No. 2006-0965
Application No. 10/827,051
35 U.S.C. § 102(b) as being anticipated by Vreeland. We turn first to independent
claim 24. We note by way of background that the burden of establishing a prima
facie case of anticipation resides with the United States Patent and Trademark
Office (USPTO). See In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788
(Fed. Cir. 1984).
Appellants assert (Brief p. 3) that “the Examiner’s attempt to analogize
Vreeland’s workpiece to a component of claim 24’s position maintainer is
untenable, as the position maintainer is expressly distinguished from a workpiece
in claim 24’s preamble.” It is asserted (Brief p. 4) that the problem with the
examiner's analogizing claim 24's stoppers to Vreeland's apertures 26, 27, and 28 is
that claim 24 requires the stoppers to be interposed between the surface and the
biasing device. Appellants argue (id.) that the apertures 26-28 cannot be
interpreted as being interposed between the surface of base 10 and glass tube 31
(or elements 21, 18, and 23). It is further argued (Brief p. 4) that the examiner's
citation of Vreeland's element 25 as an aperture represents a mis-comparison
because Vreeland's element 25 is a base plate rather than an aperture. Appellants
also take issue with the examiner's contention that base plate 25 is a plurality of
stoppers, and asserts that the examiner's position is contrary to Vreeland's
disclosure of a single base plate. Appellants argue that as a result of these
differences, Vreeland cannot be understood to anticipate claim 24.
The examiner's position (Answer p. 3) is that the stoppers are elements 26,
27, and 28 of Vreeland, and that portions of the block containing apertures are
stoppers; i.e., each 1/3 of the block containing a single aperture is a stopper. The
examiner adds (Answer pp. 5 and 6) that due to the selective positioning of the
block as it is slid along the base, the 1/3 of the block is switchably exclusively
interposed between the base and the biasing means.
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