Appeal No. 95-2227
Application No. 08/048,964
disclosed by Rosinski. The appellants' brief is less than clear as to just what part of the
data they are specifically relying on. (See 37 CFR § 1.192(a)). However, there seems to
be no question that the evidence submitted by appellants and presented in the
specification seeks to compare the claimed invention with the examples provided by
Rosinski. We acknowledge that proof of unexpected properties may be in the form of
direct or indirect comparative testing of the claimed invention and the closest prior art. In
re Boesch, supra.
The examiner has questioned the persuasiveness of this type of comparison
stating (Answer, page 5 ):
The argument that unexpected experimental results rebut the prima
facie case of obviousness is not persuasive because the results are not
compared to the closest prior art. ...... a comparison is made with the
Rosinski case in which the ZSM-5 and large pore aluminosilicates are
contained in the same particle, no comparison is made with Rosinski case
in which a mixture of particles is added to the cracking unit, some particles
containing only the ZSM-5 aluminosilicate and the other particles containing
only the large-pore aluminosilicate.
Appellants' take the position (Brief, page 5) that:
While it is true that Rosinski teaches separate particle additives, he
also teaches that they are not preferred.
Appellants urge that the closest prior art is represented by the Rosinski's examples with
both the cracking catalyst and ZSM-5 present in a single particle or matrix (Brief, page 6).
Thus appellants' seek to compare the claimed process with that of Rosinski, albeit, where the
Rosinski catalyst components are present in a single matrix.
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