Appeal 2007-2242
Application 10/352,997
In deciding this appeal, we have considered the following: (1) the
Final Rejection, mailed January 20, 2006; (2) the Appeal Brief, filed
September 1, 2006; (3) the Examiner’s Answer, mailed November 6, 2006;
and (4) the Reply Brief, filed January 8, 2007. We have also studied
Applicants’ Specification and the whole of Lee, European Patent 777,756.
Statement of the Case
The claims on appeal relate to “a duplex stainless steel for use in a
urea manufacturing plant” (Specification, p. 1). “This duplex stainless steel
has a high corrosion resistance in environments where construction materials
of urea plants are exposed” (Specification, p.1). The claimed steel is also
said to possess strength, prevent formation of a sigma phase if the steel is
exposed to specific temperatures, and display good surface properties in hot
working (Specification, p. 3).
The main issue on appeal is whether the Examiner has made out a
case for obviousness under 35 U.S.C. § 103(a). “[T]he examiner bears the
initial burden, on review of the prior art or on any other ground, of
presenting a prima facie case of unpatentability.” In re Oetiker, 977 F.2d
1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992). The concept of prima
facie obviousness is a procedural mechanism, which requires the examiner
to produce evidence sufficient to support a ruling of obviousness in the first
instance. See In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 787-788
(Fed. Cir. 1984). “If examination at the initial stage does not produce a
prima facie case of unpatentability, then without more the applicant is
entitled to grant of the patent.” In re Oetiker, 977 F.2d at 1445, 24 USPQ2d
at 1444.
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