Appeal No. 1997-3354 Page 9
Application No. 08/469,809
here, the Appellant has failed to directly challenge the truth of a fact the Examiner states is well known
or “customary” and it is clear that Appellant has been apprised of such finding so as to have the
opportunity to make such a challenge, the Examiner’s finding will be considered conclusive. See In re
Ahlert, 424 F.2d 1088, 1091-92, 165 USPQ 418, 420-21 (CCPA 1970). Furthermore, we do not
think Appellant could reasonably believe the Examiner’s assertion to be false. All three of the judges
on this panel have used dishwashing detergent for multi-purpose cleaning such as for cleaning soil on
counters and floors in the kitchen. The existence of other specialty cleaners on the market does not
negate this fact. Sometimes, it has been simply more convenient to use the dishwashing product already
at hand to adequately accomplish the task. Those who routinely or even periodically perform
household cleaning would recognize the truth of the Examiner’s statement.
For the foregoing reasons and those set forth in the Answer, we conclude that the Examiner has
established a prima facie case of obviousness with respect to claims 2, 4-6, 8, 9, 13-15, and 17-19.
Unexpected Results
Once a prima facie case of obviousness is established, the burden of coming forward
with evidence and argument in rebuttal is shifted to appellants. See In re Piasecki, 745 F.2d 1468,
1472, 223 USPQ 785, 788 (Fed. Cir. 1984). Rebuttal may take the form of a comparison with the
prior art showing that any differences are not merely normal expected variations but would be
unexpected by those of ordinary skill in the art. See In re Mayne, 104 F.3d 1339, 1342, 41 USPQ2d
Page: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
Last modified: November 3, 2007