Appeal 2006-2686
Application 09/994,495
For the foregoing reasons and those stated in the Answer, we
determine that the burden has been shifted to Appellants to establish that the
collection plate taught by Franciskovich is not capable of performing the
claimed function. See Schreiber, supra. We determine that Appellants have
not met this burden.
Appellants argue that Franciskovich “teaches away” from the claimed
invention by suggesting that a seal is not provided between the column
manifold 14 and the collector plate 16 when a centrifuge is employed to
drive the sample (Br. 12). Appellants argue that col. 5, ll. 9-15, of
Franciskovich clearly communicates that openings 70 are not sealed (Br.
13).
Appellants’ arguments are not persuasive. First, we note that the
question of whether a reference “teaches away” from the invention is
inapplicable to an anticipation analysis. See Celeritas Techs., Ltd. v.
Rockwell Int’l Corp., 150 F.3d 1354, 1361, 47 USPQ2d 1516, 1522 (Fed.
Cir. 1998). Second, as discussed above, a seal is not required by claim 1 on
appeal but merely a sealing device that is “adapted” to individually seal the
openings of the purification devices, i.e., a sealing device that is capable of
sealing the openings.
For the foregoing reasons and those expressed in the Answer, we
determine that the Examiner has established a prima facie case of
anticipation that has not been adequately rebutted by Appellants’ evidence
or arguments. Therefore we affirm the rejection of claim 1, and claims 2-5,
openings of the separation devices to the same extent that Appellants’
sealing tray (24) “seals” the openings of the tubular body 10 (Answer 11).
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