Wednesday, July 03, 2013

Appellant loses in Ex parte Yokota. In re Best is cited.

from Ex parte Yokota

Indeed, not only have Appellants failed to
persuasively rebut the Examiner’s inherency finding,2 reflection off the color
film of Wei is a predictable result which follows from common sense that
one of ordinary skill would appreciate. It is circumstances like this where
obviousness is found. See KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 421
(2007). Once the Examiner has established a case for obviousness, it is the
burden of Appellants to overcome that finding with persuasive argument
based on evidence of record. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir.
1992). Appellants have failed to do so.

Footnote 2 cites to In re Best:

See In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (“Where, as here, the
claimed and prior art products are identical or substantially identical, or are
produced by identical or substantially identical processes, the PTO can
require an applicant to prove that the prior art products do not necessarily or
inherently possess the characteristics of his claimed product.”)


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