Appeal 2007-0284
Application 10/454,564
In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433-34 (CCPA 1977)
(footnote omitted). See also In re Spada, 911 F.2d 705, 709, 15 USPQ2d
1655, 1658 (Fed. Cir. 1990) (“when the PTO shows sound basis for
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”).
DISCUSSION
Appellants do not dispute that Murray discloses every limitation of
claim 12, except the clause “wherein the aminosilicone and non-amino
functionalized silicone are in the form of emulsion drops containing a blend
of the aminosilicone and non-amino-functionalized silicone.” (See Br.
passim.) Based on the laws of physics, in the absence of any evidence to
the contrary, we find this disputed limitation is met: Murray’s mixing of
pre-emulsified amino silicone and pre-emulsified non-aminosilicone in his
aqueous shampoo inherently results in at least some “emulsion drops
containing a blend of the aminosilicone and non-amino-functionalized
silicone,” as required by claim 12. (See Answer 4.)
We disagree with Appellants’ unsupported argument that Murray’s
shampoo compositions “only contain emulsion drops of amino-
functionalized silicone and separate emulsion drops of non-amino-
functionalized silicone” and thus are “structurally different from the claimed
conditioning shampoo.” (Br. 5.) The Examiner has at least made a prima
facie case to the contrary. Appellants have not provided any evidence to
rebut the Examiner’s prima facie case. Thus, we affirm the Examiner’s
§ 102(b) rejection of claim 12.
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