Appeal No. 96-0596
Application No. 08/069,887
in appealed claim 1. The burden is on the examiner to show
that the commercially available modified polyethylene waxes
preferred by Woodhams (column 4, lines 21-29) are inclusive of
or encompass the preferred modified polyolefins disclosed by
appellants (see the specification, page 6, line 13-page 7,
line 5). See Oetiker, supra. The examiner has not cited any
objective evidence to support the conclusion that the acidic5
polyethylene waxes of Woodhams are equivalent to the acid
functionalized polyolefins recited in appealed claim 1.
For the foregoing reasons, we conclude that the examiner
has not met the initial burden of presenting a prima facie
case of obviousness. Since we find that the examiner has not
established a prima facie case of obviousness, we need not
reach the issue of the sufficiency of the showing of
unexpected results. In re Geiger, 815 F.2d 686, 688, 2 USPQ2d
1276, 1278 (Fed. Cir. 1987). Accordingly, the rejection of
5It should be noted that the “trade mark EPOLENE”
disclosed at column 4, line 26, of Woodhams differs in
spelling from the “brand name Epoleen” disclosed by appellants
in the specification at page 7, lines 1-2.
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