Appeal 2007-4101
Application 09/962,972
The Appellants contend that Utamapanya et al. (Chem. Mater., 3:175-
181 (1991)) teaches away from preparing pellets from an aqueous
suspension (Br. 12). However, 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
Utamapanya literature not provided by the Appellants.
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. 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 cartridge housing containing an
adsorbent/catalyst pellet. The Appellants simply have not pointed to any
part of Utamapanya which contradicts Klabunde’s teaching relating to the
employment of adsorbent pellets in the cartridge housing of the type
discussed in Price.
As a rebuttal to the prima facie case, the Appellants have referred to
page 3, paragraphs 0036 and 0037 of 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. 12-14).
The dispositive question is, therefore, whether the Appellants’
reference to 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.
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