Appeal 2006-2589
Application 10/618,499
See In re Fitzgerald, 619 F.2d 67, 70, 205 USPQ 594, 596 (CCPA
1980); In re Fessmann, 489 F.2d 742, 744, 180 USPQ 324, 325-26
(CCPA 1974). Once the Examiner meets this burden of proof, the
burden shifts to Appellants to show that the claimed product
materially differs from the product of the prior art. It is the product
that must be gauged in light of the prior art, not the process
limitations. See In re Wertheim, 541 F.2d 257, 271, 191 USPQ 90,
103 (CCPA 1976); In re Fessmann, supra.
The Examiner contends that the combination of Diehr in view
of Mente suggests forming the article from lignocellulosic materials
having a moisture content of less than 2% impregnated with an
organic polyisocyanate. Appellants argue that the process steps of
claim 1 impart distinctive structural characteristics to the resultant
product (Br. 16-19).
Appellants have not provided evidence to establish that the
process steps impart distinctive characteristics to the resultant
product. Appellants have not directed us to evidence in the present
record that establishes that the product produced from the process of
claim 1 has different structural features from the product of the
closest prior art. That is, Appellants have not directed us to
evidence that exhibits the argued structural differences in the
products resulting from the claimed invention and the prior art.
For the foregoing reasons and those presented in the Answer,
the rejection of claims 1-15, 17-34, 37-39, and 41 under 35 U.S.C.
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