Appeal No. 95-4025
Application 07/996,968
that the prior art could be modified such that appellants’
process is carried out is not a sufficient basis for a prima
facie case of obviousness. See In re Brouwer, 77 F.3d 422,
425, 37 USPQ2d 1663, 1666 (Fed. Cir. 1996); In re Ochiai, 71
F.3d 1565, 1570, 37 USPQ2d 1127, 1131 (Fed. Cir. 1995).
One of ordinary skill in the art clearly would have been
motivated to modify the structure or use of the Blough
apparatus to form bubbles smaller than 1 mm in view of the
teaching by Blough discussed above of the benefits of
decreasing the bubble size. The examiner’s argument is
deficient in that he has provided no evidence that one of
ordinary skill in the art, given the Blough disclosure, would
have had a reasonable expectation of success in forming
bubbles having an average size of about 0.25 mm as required by
appellants’ claims. Blough teaches that the rapid rotation of
his propeller produces a region of reduced pressure
immediately behind the propeller and causes the air to be
sucked downwardly through the hollow shaft to which the
propeller is attached and into the animal waste material (col.
4, lines 23-28). The rapidly rotating axial thrust propeller,
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