Appeal 2007-4098
Application 09/962,887
‘from common knowledge and common sense of the person of ordinary skill
in the art without any specific hint or suggestion in a particular reference.’”).
As evidence of obviousness of the subject matter recited in claims
1 through 4 under 35 U.S.C. § 103, the Examiner has again relied on the
disclosure of Klabunde. According to the Examiner, the above discussed
teachings of Klabunde would have at least suggested the claimed subject
matter within the meaning of 35 U.S.C. § 103.
As a rebuttal to the prima facie case, the Appellants have referred to
the Utamapanya literature (Utamapanya et al., Chem. Mater., 3:175-181
(1991)), an unknown published application, and a Rule 132 Declaration
executed by Mr. Schlegel (one of the inventors listed in this application) as
evidence of non-obviousness (Br. 11-14).
The dispositive question is, therefore, whether the Appellants’
reference to Utamapanya, the unknown published application, and the
Schlegel Declaration rebuts the prima facie case established by the
Examiner. On this record, we answer this question in the negative.
Initially, we note that the Appellants have referred to Utamapanya as
teaching against using an aqueous suspension to prepare a pellet (Br. 12).
However, the Appellants have not supplied any copy of this literature
evidence in the Evidence Appendix section of the Brief as required by 37
C.F.R. § 41.37(c)(viii) (2004). In fact, the Appellants have indicated
“none” at the Evidence Appendix section of the Brief for the evidence relied
upon in the Brief. Accordingly, we need not consider the literature provided
by the Appellants.
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