Page 4
step (5) of the claimed subject matter may in fact occur in situ since the aluminum
cocatalyst may be identical to the reducing agent of the claimed subject matter. See
Examples IV, VII, VIII, 16 and 17. The diluent, however, remains in the closed reactor
system. Accordingly, on the record before us, there is no evidence that the reducing
agent treated solid is separated from the hydrocarbon wash liquid as required by the
claimed subject matter.
As for the disclosure of Lee at column 5, lines 65 to column 6, line 27, the
washing steps disclosed therein teach no more than the washing steps used
throughout the Capshew reference. Capshew discloses that, “[f]ollowing the
treatment of solids with the halide ion exchanging source the surplus halide ion
exchanging source is removed by washing with a dry (essential absence of water) liquid
such as a hydrocarbon of the type previously disclosed, n-hexane . . . " A similar
step is taught supra in Capshew.
Based upon the above considerations, the examiner has not established a
prima facie case of obviousness and the examiner's rejection of the claimed subject
matter as unpatentable over Capshew in view of Arzoumanidis, Wristers and Lee is not
sustained. In view of the above analysis, we have determined that the examiner’s legal
conclusion of obviousness is not supported by the facts. “Where the legal
conclusion [of obviousness] is not supported by the facts it cannot stand.” In re
Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967).
Since no prima facie case of obviousness has been established, we need not
address the experimental results relied upon by appellants. See Brief, page 8. In
re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984); In re
Rinehart, 531 F.2d 1048, 1052, 189 USPQ 143, 147 (CCPA 1976).
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