Appeal No. 94-2410
Application 08/011,573
what “high” values are. Chloupek desires “highly acidic”3
catalysts and, as shown by Morrison, this type of catalyst has
high alpha values. Finally, Harandi does not disclose alpha
values but incorporates-by reference Morrison (column 1, line 66-
column 2, line 2). Therefore, the comments about Morrison apply
also to Harandi.
Accordingly, we agree with the examiner that low alpha value
zeolite catalysts are known but we find no reason or suggestion,4
other than from appellants’ specification, to use these catalysts
in the disproportionation reactions of Chloupek, Morrison, or
Harandi. Where the legal conclusion of obviousness is not
supported by facts, it cannot stand. See In re Warner, 379 F.2d
1011, 1016-17, 154 USPQ 173, 177-78 (CCPA 1967), cert. denied,
389 U.S. 1057 (1968). For the foregoing reasons, we find that
the examiner has not presented a sufficient factual basis to meet
3Sorensen et al. (Sorensen), U.S. Patent 4,754,100, of
record in this application, is a continuation-in-part of Morrison
and has a similar disclosure. However, Sorensen has the
additional disclosure that “high” alpha values are desired and
these are “typically about 100 to 500" (column 5, lines 44-55).
Furthermore, Sorensen discloses a specific embodiment of a HZSM-5
catalyst with an alpha value of 194 (Example 1, column 8, lines
63-65).
4See Miale et al., Journal of Catalysis 6, 278-287 (1966),
and Olson et al., Journal of Catalysis 61, 390-396 (1980), both
cited by appellants on page 7 of the specification.
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