Appeal 2007-2868
Application 10/256,503
Appellants’ principal contention that Eisler does not teach or suggest
braiding and chemically coating the cord under high tension. As noted
above, however, independent claims 7 and 16, and claims dependent
thereon, do not recite high tension but, rather, only tension.
It is well settled that when a claimed process or product reasonably
appears to be substantially the same as a process or product disclosed by the
prior art, the burden is on the applicant to prove with objective evidence that
the prior art process or product does not necessarily or inherently possess
characteristics attributed to the claimed process or product. In re Spada,
911 F.2d 705, 708 (Fed. Cir. 1990; In re Best, 562 F.2d 1252, 1255 (CCPA
1977). In the present case, the chemically treated cord of Eisler appears to
be sufficiently like cords encompassed by the broad claims on appeal to shift
to Appellants the burden of demonstrating with objective evidence that there
is a patentable distinction between the cords. While Appellants maintain
that the cord of Eisler is not under tension when placed in a basket for
impregnation with polyurethane, Eisler expressly discloses that “[t]he same
results may be obtained by using a reel and passing the braid through an
impregnation bath 2, provided with multi-grooved pulleys” (Eisler, col. 4,
ll. 4-6). In our view, if this passage does not explicitly state that the cord is
under tension during impregnation, it strongly suggests as much.
Appellants make reference to a statement in the present Specification
that “[a] cord formed in accordance with . . . the present invention and as
illustrated in Fig. 5, has been found to provide a wear cycle that is
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