Appeal 2007-2154
Application 10/374,773
90 percent by weight, a proportionality that embraces the proportionality of
these ingredients, as disclosed by Appellants (see Betso, col. 13, ll. 46-51
and Specification 15:18-26). Given these commonalities of ingredients and
proportions of the materials disclosed by Betso and Appellants, we agree
with the Examiner that it would have been reasonable to expect that the
materials disclosed and suggested by Betso have properties corresponding to
the properties of Appellants’ claimed material, including the capability for
injection molding thereof as required by appealed claim 1. Where, as here,
the Examiner has provided a reasonable basis to infer that the claimed and
suggested prior art materials are substantially identical, the burden is
properly shifted to Appellants to produce evidence which demonstrates that
the prior art material does not necessarily or inherently possess the
characteristics of the claimed material. See In re Best, 562 F.2d 1252, 1254-
55, 195 USPQ 430, 433-34 (CCPA 1977). Indeed, Betso discloses that their
material is capable of extrusion and the material is curable (Betso, col. 19, ll.
23-39). These characteristics are highly suggestive of the capability of the
material being injection moldable. Appellants have not established
otherwise.
It follows that, on this record, we shall affirm the Examiner’s
obviousness rejection of claims 1-10.
Claims 11-13
We select claim 11 as the representative claim for this claim grouping.
Appellants’ generalized contention that dependent claims 11-13 require a
low molecular polymer in the recited claimed proportions to the
interpolymer is not a persuasive separate argument for the patentability of
this grouping of dependent claims. In particular, we note that representative
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