Appeal 2007-1525
Application 10/664,628
35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and
its fairness is evidenced by the inability of the Patent and Trademark Office
to manufacture products or to obtain and compare prior art products. In re
Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433-34 (CCPA 1977). See also
In re Skoner, 517 F.2d 947, 950, 186 USPQ 80, 82-83 (CCPA 1975).
Because the transfer belt products defined by claim 1 and disclosed by
Hagfors appear to be identical and appear to be manufactured by identical
processes, it is appropriate to require Appellant to prove that Hagfors’
transfer belt does not necessarily and inherently contain the average length
range of claim 1. On this record, the Appellant has proffered no such proof.
Therefore, we sustain each of the § 103 rejections advanced by the Examiner
on this appeal.
The decision of the Examiner is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED
clj
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