Appeal No. 94-4429
Application 07/910,967
argument is not well taken because the examiner has not
established that it was known in the art that aldehydes having
alpha-hydrogen atoms were suitable. The examiner has used
appellant’s own teaching against him, which is improper. See
In re Zurko, 111 F.3d 887, 889, 42 USPQ2d 1476, 1479 (Fed. Cir.
1997).
For the above reasons, we conclude that the examiner has not
carried her burden of establishing a prima facie case of
obviousness.
DECISION
The rejections under 35 U.S.C. § 103 of claims 1, 2, 5,
6 and 33-35 over Braid or Hook and of claims 7, 8 and 11-36
over Braid or Hook, each in view of Meinhardt, Watson, Bartlett
or Le Suer, are reversed.3
REVERSED
3We note that in claim 7, it appears that in the first structure “D”,
the “P” should be double bonded to “S” instead of “O”, and that in the second
structure “D”, the “P” should be double bonded to “O” instead of “S”. See the
specification, page 6, line 16 - page 7, line 18.
5
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