Appeal No. 97-2359
Application 07/894,260
oxide particles, are used (col. 6, lines 22-32).
For the above reasons, the evidence and argument of
record, on balance, leads us to conclude that the invention
recited in appellants’ claims 66-68 would have been obvious to
one of ordinary skill in the art within the meaning of 35
U.S.C. § 103.
Obviousness type double patenting rejections
The examiner argues that appellants have not established
that the method of making the particles or the particle size
influences the function of the particles (answer, pages 4 and
16). This argument is not well taken because the examiner has
the initial burden of establishing a prima facie case of
obviousness. See In re Piasecki, 745 F.2d 1468, 1472, 223
USPQ 785, 788 (Fed. Cir. 1984); In re Rinehart, 531 F.2d 1048,
1051, 189 USPQ 143, 147 (CCPA 1976). The examiner has not met
this
burden by stating that appellants have not established that a
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