Appeal 2006-3326
Application 09/881,909
Examiner. In fact, the Examiner goes as far as requiring
Appellant contact a competitor/customer to ask for the
dimensions of their device.
However, as noted by the Examiner, there is no evidence that Appellants
have even attempted to acquire the dimensions of the system that Mr.
Wisniewski's designed. Moreover, even assuming that Mr. Wisniewski's
former employer would not cooperate with such a request, there is simply an
utter lack of evidence that Appellants made any effort to recreate the
Wisniewski system to the best of their knowledge and then ascertained that
no thermal bridge is formed. Nor have Appellants established that a distance
of 4 inches or greater between the distal end of the fin and the interior wall
of the container necessarily precludes the formation of a thermal bridge
between the distal end and the interior wall, regardless of the size and shape
of the fin.
It is by now well settled that when a claimed system or process
reasonably appears to be substantially the same as a system or process
disclosed by the prior art, the burden is on the applicant to prove that the
prior art system or process does not necessarily or inherently possess
characteristics attributed to the claimed system or process. In re Spada, 911
F.2d 705, 708, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990); In re Best, 562 F.2d
1252, 1255, 195 USPQ 430, 433 (CCPA 1977). In the present case, we find
that the Examiner has made out a prima facie case that the system of
Wisniewski reasonably appears to provide a thermal bridge between the
distal end of the fin and the interior wall of the container. However,
Appellants have not shouldered their burden of establishing that no thermal
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