Appeal 2007-2133
Application 10/790,502
In this respect, we are of the opinion it was well known that resin coating
composition thermally curable to a solid by convection can reasonably be
thermally cured with infrared radiation. See In re Ahlert, 424 F.2d 1088,
1091-092, 165 USPQ 418, 420-21 (CCPA 1970) (notice may be taken “of
facts beyond the record which, while not generally notorious, are capable of
such instant and unquestionable demonstration as to defy dispute”).
Furthermore, we cannot agree with Appellants that one of ordinary skill in
this art would not have considered Siebert’s composition capable of coating
a fuel cell plate except by pouring (Br. 9-10; Reply Br. 4-5). Indeed, the
reference teaches flowable compositions and Pellegri discloses epoxy resin
coating composition can be brushed onto a substrate. In this respect, we
further point out there is no limitation in claims other than in process claims
26 and 33, on the manner in which the coating compositions are applied to
the plate, and, thus, the claims encompass methods in which the composition
is poured onto the plate in a mold. See In re Self, 671 F.2d 1344, 1348-349,
213 USPQ 1, 5 (CCPA 1982).
substantially identical, or are produced by identical or
substantially identical processes, the PTO can require an
applicant to prove that the prior art products do not necessarily
or inherently possess the characteristics of his claimed product.
See In re Ludtke, [441 F.2d 660, 169 USPQ 563 (CCPA 1971)].
Whether the rejection is based on “inherency” under 35 U.S.C.
§ 102, on “prima facie obviousness” under 35 U.S.C.
§ 103, jointly or alternatively, the burden of proof is the same,
and its fairness is evidenced by the PTO’s inability to
manufacture products or to obtain and compare prior art
products. [Footnote and citation omitted.]
Best, 562 F.2d at 1255, 195 USPQ at 433-34.
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