Appeal 2007-4217
Application 10/345,394
shows sound basis for believing that the products of the applicant and the
prior art are the same, the applicant has the burden of showing that they are
not.” In re Spada, 911 F.2d 705, 708, 15 USPQ2d 1655, 1658 (Fed. Cir.
1990). We find that the Examiner has set forth a prima facie case of
anticipation that has not been adequately rebutted by Appellants, and the
rejection is affirmed.
Appellants argue that Yamanaka, in both the working examples and
the description, “relate[s] to a non-flowable cellulose ‘gel film’ produced
directly by cellulose-producing bacteria.” (Br. 4.) According to Appellants,
the “proof that Yamanaka's material is non-flowable is found in the working
examples, which state, for example, that the ‘cationized gel film was cut into
a disc’ (see example 1). A flowable material manifestly could not be ‘cut
into a disc’. A material which flows cannot be cut or formed into any stable
shape.” (Id.)
As noted by the Examiner, however, Appellants’ gel composition
comprises 4-7% of a microbial cellulose, and Yamanaka discloses a gel
composition comprising 5% of a microbial cellulose (Answer 6). Both
Appellants and Yamanaka use the same microbe, Acetobacter xylinum, to
produce the cellulose (id.). In addition, Yamanaka defines “a gel of
microbially produced cellulose” as “a solid colloidal solution of microbially-
produced cellulose in a physiologically-acceptable carrier such as deionized
water, saline or glycerol.” (Yamanaka, col. 2, ll. 56-61). Finally, Yanamaka
teaches that the cellulose may be used directly after washing, or after the gel
is disintegrated by application of a mechanical shearing force (Yanamaka,
col. 3, ll. 59-65). Thus, as the compositions appear to be the same, they
would have the same properties of being “amorphous” and “flowable.” (Id.)
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