Appeal 2007-4098
Application 09/962,887
Even if we were to consider the literature evidence in question, our
conclusion would not be altered. As is apparent from our discussion above,
Klabunde teaches forming a pellet from the types of gels recommended by
Utamapanya. Utamapanya does not teach away from employing the pellets
taught by Klabunde or palletizing adsorbents in the manner taught by
Klabunde. Moreover, the Appellants’ reliance on Utamapanya to highlight a
process by which pellets are made is of no moment as the claims on appeal
are directed to a product, i.e., a unit containing an adsorbent/catalyst pellet.
The Appellants have also referred to page 3, paragraphs 0036 and
0037 of the unknown published application as describing the formation of
paste having highly organized crystalline needle-like structure from an
aqueous suspension (Br. 13). However, the Appellants have not supplied
any copy of this evidence in the Evidence Appendix section of the Brief as
required by 37 C.F.R. § 41.37(c)(viii) (2004). As noted above, 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 unknown published application not provided by the Appellants.
In any event, the claims on appeal do not preclude compacting and shaping
the above structure in the manner taught by Klabunde.
Moreover, the Appellants have referred to the Schlegel Declaration
and Specification Example 2 to rebut the prima facie case established by the
Examiner (Br. 13-14). According to the Appellants, the Schlegel
Declaration and Specification Example 2 show that the claimed subject
matter imparts unexpected results (id). We are not convinced that the
Appellants have carried the burden of showing unexpected results. In re
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