Based upon the above considerations, the examiner has not established a prima
facie case of obviousness and the examiner's rejection of claims 1 through 5 as
unpatentable over Shevchenko is not sustained. In view of the above analysis, we have
determined that the examiner’s legal conclusion of obviousness is not supported by
the facts. “Where the legal conclusion [of obviousness] is not supported by the
facts it cannot stand.” In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173,
178 (CCPA 1967).
In summary, on this record, we reverse each of the rejections under 35 U.S.C.
§ 103.
Remand to the Examiner
Accordingly, on consideration of the record, we remand the application to the
jurisdiction of the examiner for appropriate action in accordance with our decision
supra. Upon return of this application to the examiner, the examiner and applicants
should reconsider the patentability of the claimed subject matter over the Chemical
Abstracts 102:172028f underlying reference, if readily available, and any possible
combination of references including Vakulenko. In considering the patentability of the
claimed subject matter the examiner must fully address the limitation directed to the
virtual complete destruction of the aromatic nitro compound "down to inorganic
omponents."
With respect to each rejection, if any are to be entered, the examiner shall state
the ground of rejection and point out where each of the specific limitations recited in
the rejected claims is found in the prior art relied upon in the rejection, shall
8
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
Last modified: November 3, 2007