Appeal 2007-4013
Application 09/768,512
a prima facie case of obviousness with product-by-process claims. See, e.g.,
In re Fitzgerald, 619 F.2d 67, 70, 205 USPQ 594, 596 (CCPA 1980); In re
Fessman, 489 F.2d 742, 744, 180 USPQ 324, 326 (CCPA 1974).
We are of the opinion Appellants’ contentions do not successfully
carry their burden of rebutting the Examiner’s prima facie case. We cannot
agree with Appellants that the limitation “wherein the unmelted brazing foil
material is not disposed in the solder-rising preventing groove” in claim 1
distinguishes the claimed carriers over those disclosed by the Usui
references. Br., e.g., 11-12. We interpreted claim 1 above to encompass
carriers in which molten brazing material diffusing into the “solder-rising
preventing groove” forms a contact at that point along the peripheries of the
core and cylinder even though the groove did not contain unmelted brazing
foil material prior to heat treatment of the brazing foil containing
core/cylinder assembly. We further interpreted claim 1 to include carriers
which have contact points along the peripheries of the core and cylinder on
both ends of the carrier, as do the carriers of both Usui references. See
Br. 13-14; Reply Br. 4-5.
Accordingly, based on our consideration of the totality of the record
before us, we have weighed the evidence of obviousness found in the
combined teachings of Usui ‘774, Usui ‘611, Shimada and Nonnenmann
with Appellants’ countervailing evidence of and argument for
102, on “prima facie obviousness” under 35 USC 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.]
9
Page: Previous 1 2 3 4 5 6 7 8 9 10 Next
Last modified: September 9, 2013