Ex parte DONALD W. KELLEY - Page 6

                Appeal No. 94-1550                                                                                                            
                Application 07/893,662                                                                                                        

                defined in the appealed claims is anticipated by well known prior                                                             
                art.  Further, when challenged  by appellant, the examiner was4                                                                           
                unable to provide an “instant and unquestionable demonstration”                                                               
                that the facts taken notice of were indeed “well known” in the                                                                
                art.  Accordingly, the evidentiary record provided by the                                                                     
                examiner in this appeal falls far short of that required to                                                                   
                establish a prima facie case of obviousness for the claimed                                                                   
                subject matter.  Nevertheless, as discussed below, there is                                                                   
                evidence in the appeal that factually supports the examiner’s                                                                 
                contention that it would have been obvious to a person ordinary                                                               
                skill in the art to add a “pesticide” to the formulation of                                                                   
                Dessaint motivated by reasonable expectation of success.  See the                                                             
                Answer at page 4.                                                                                                             
                         In their Brief at page 3, appellant argues that the claim                                                            
                language “consists essentially of” in appealed claim 1 makes it                                                               
                clear that appellant’s claims do not cover a formulation which                                                                
                includes a polyurethane.  Appellant further contends that the                                                                 
                Dessaint compositions, as shown by the examples, require the                                                                  

                         4An applicant must be given the opportunity to challenge                                                             
                either the correctness of the fact asserted or the notoriety or                                                               
                repute of the reference cited in support of the assertion.  Such                                                              
                a challenge should contain “adequate information or argument so                                                               
                that on its face it creates a reasonable doubt” regarding the                                                                 
                notice taken.  In re Boon, 439 F.2d 724, 728, 169 USPQ 231, 234                                                               
                (CCPA 1971).                                                                                                                  

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