102(e) rejection affirmed by PTAB in Ex parte Cheves

from Ex parte Cheves

In re Best is cited, although not for the usual reason:



A prima facie case can be rebutted by evidence showing that the prior
art products do not necessarily possess the characteristics of the claimed
product. In re Best, 562 F.2d 1252 1255 (CCPA). See also Titanium Metals
Corp. v. Banner, 778 F.2d 775 (Fed. Cir. 1985).


But the appellants lose:

Here, Appellants have not met the burden of showing that the prior art
product does not necessarily possess the characteristic undulations when in
the inflated state. In re Spada, 911 F.2d 705, 709 (Fed. Cir.1990).