Appeal No. 96-1675
Application No. 08/317,977
that the appealed subject matter would have been prima facie
obvious to a person of ordinary skill in the art at the time
appellant's invention was made.
Having concluded that the examiner has made out a prima
facie case of obviousness with respect to the appealed subject
matter, it is necessary for us to consider appellants'
rebuttal evidence and to reconsider the prima facie case anew
in light of all the evidence. In re Piasecki, 745 F.2d 1468,
1472, 223 USPQ 785, 788 (Fed. Cir. 1984).
Appellant's evidence of non-obviousness comprises the
examples in his specification and, more particularly, Example
5 on pages 14 through 16 of the specification. Appellant
urges that the data therein establish the criticality of the
pH in appellant's compositions and the critical relationship
between hydroxylamine and hydrogen peroxide at a "critical
pH." (see pages 4 and 5 of the reply brief).
Appellant, as the party asserting the claimed invention
yields unexpected or improved results compared to the prior
art, bears the burden of establishing the comparison is truly
probative and that the argued results in the declaration are
indeed unexpected or improved. In re Klosak, 455 F.2d 1077,
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