Appeal 2007-1529
Application 10/385,722
persuasive support for their contention that the limited list of specific AZ
alloys in Table 1 of their Specification provides a clear meaning or
definition for the broader claim terms AZ or AM alloys as requiring alloys
that must exclude calcium (Reply Br. 6). In this regard, it is appropriate that
Appellants bear the burden of proof on this issue. This is because
Appellants presented these claim terms and are the proponent of the
proposition that AM or AZ alloys are known to exclude calcium and hence
bear the burden of producing evidence in support of the restrictive definition
advocated therefore. Also, Appellants would appear to have greater access
to information bearing on this claim interpretation question before us than
the Examiner. The limited examples of specific alloy materials furnished by
Appellants do not satisfy this burden.
Consequently, we determine that Appellants have not established that
representative claim 8 excludes calcium based on the broadly recited AZ or
AM alloys. Hence, Appellants’ principal argument against the Examiner’s
obviousness determination is not persuasive of any reversible error in the
Examiner’s rejection of representative claim 8.4 It follows that we shall
affirm the Examiner’s obviousness rejection of claims 8-13 and 30-34, on
this record.
4 Because we determine that representative claim 8 has not been shown to
exclude calcium from the recited alloys, we need not further discuss the
Examiner’s seeming alternative position that it would have been obvious to
one of ordinary skill in the art to employ a known magnesium aluminum
alloy, such as AZ 91, that may exclude non-trace amounts of calcium, as an
alternative to the calcium-containing alloy of EP ‘710.
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