In re Best cited in BPAI decision in Ex parte Berti
From Ex parte Berti
Applicant seems to argue that the processes are not identical, it appearing that applicant believes there are “missing features” in the Kasehagen article. Brief, page 5. Unfortunately, applicant has not favored us with an identification of those “missing features” apart from those already addressed above. Since applicant has not
explained why both would not yield similar products, we hold that the Examiner has made out a reasonable (and unrebutted) case that the Kasehagen products reasonably could have the claimed MWD range. In re Best, 562 F.2d 1252 (CCPA 1977); In re Spada, 911 F.2d 705 (Fed. Cir. 1990).
Lastly, we note that the Examiner’s “continuous” process holding is consistent with applicable precedent, including In re Dinot, 319 F.2d 188, 194 (CCPA 1963) (cited by the Examiner—Answer, page 6.). See also In re Korpi, 160 F.2d 564, 566 (CCPA 1947) (case in which it was held to be obvious to convert batch process into continuous process) and In re Lincoln, 126 F.2d 477, 479 (CCPA 1942).