Appeal No. 95-3865
Application 07/714,568
top layer. The Examples support this teaching as all of the
examples have the 4 isomer in the bottom layer and the 5 isomer3
in the top layer. Therefore, Jain teaches away from the claimed
plate with the 5-sulfonyl ester in both layers.
For the foregoing reasons, we conclude that the examiner has
not established a prima facie case of obviousness based on the
Jain, Uehara and Nishioka references. Because we reverse on the
basis of failure to establish a prima facie case of obviousness,
we need not reach the issue of the sufficiency of the showing of
unexpected results (i.e., Table 1 on page 22 of the
specification). In re Geiger, 815 F.2d 686, 688, 2 USPQ2d 1276,
1278 (Fed. Cir. 1987). Accordingly, the rejection of claims 6-8,
3It is noted that Example 7 contains a mixture of the 4 and 5 isomers in
the bottom layer, with the 5 isomer in the top layer.
8
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