Appeal No. 95-0459
Application No. 07/941,845
Arkley, 455 F.2d 586, 587, 172 USPQ 524, 526 (CCPA 1972). Nor
can it be said that the prior art has disclosed a composition
substantially identical with the claimed invention. See In re
Schaumann, 572 F.2d 312, 317, 197 USPQ 5, 10 (CCPA 1978).
Hence, we shall not sustain either of the rejections on the
grounds of anticipation.
The § 103 rejections
Notwithstanding our finding supra, it should be noted
that rejections under 35 U.S.C. § 103 may be appropriate and
proper where the subject matter claimed is not identically
disclosed or described. Accordingly, we shall next consider
the rejection of the claims over Baur or Eckey under 35 U.S.C.
§ 103 and the rejection of Baur or Eckey in view of Jandacek
under 35 U.S.C.
§ 103.
Assuming arguendo that it would have been prima facie
obvious for one of ordinary skill in the art to prepare
appellants’ claimed subject matter, it is necessary for us to
consider appellants’ rebuttal evidence. Appellants urge that
they have presented objective evidence wherein the claimed
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