Appeal No. 95-4962
Application No. 07/972,660
In re Miller, 441 F.2d 689, 693, 169 USPQ 597, 600 (CCPA
1971); In re Gardner, 427 F.2d 786, 788, 166 USPQ 138, 140
(CCPA 1970); Ex parte Scherberich, 201 USPQ 397, 398 (Bd. App.
1977). Also, we find that the examiner’s allegation is
conclusory and is not sufficient to establish a prima facie
case of unpatentability under § 112, second paragraph.
Moreover, the examiner has not rebutted appellants’ position
set forth at pages 6 through 8 of the Brief, which refers to
prior patents to establish that the term “derivatives” is well
accepted in the art. Accordingly, we reverse the examiner’s
decision rejecting claims 1 through 3 and 7 through 10 under
35 U.S.C. § 112, second paragraph.
35 U.S.C. § 103
The examiner has also rejected appealed claims 1 through
3 and 7 through 11 under 35 U.S.C. 103 in view of either Mehta
or Ikegami taken together with Remington. We cannot sustain
these rejections for essentially those reasons set forth at
pages 8 through 14 of the Brief. We only add that the prior
art references relied on by the examiner also do not teach,
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