Appeal 2006-1989
Application 09/772,278
Patent 5,996,948
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, 708, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore, 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 433. See also Titanium
Metals Corp. of Am. v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779
(Fed. Cir. 1985).
The Examiner correctly found that Buff established a prima facie case
of anticipation. At that point, the burden shifted to Appellant to show that
the prior art structure did not inherently possess the functionally defined
limitations of his claimed apparatus. In re Schreiber, 128 F.3d 1473, 1478,
44 USPQ2d 1429, 1432 (Fed. Cir. 1997). Appellant has failed to
demonstrate that the functional characteristics of his claimed invention are
not inherent in the structure disclosed by Buff.
Fourth, Appellant argues at page 10 of the Brief that the Examiner has
erred because Buff fails to disclose the claimed “at least two wire legs (16)
- 22 -
Page: Previous 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Next
Last modified: September 9, 2013