Appeal No. 1997-1767
Application No. 08/442,959
As we discussed above, however, we find that the examiner
has not provided the requisite factual basis upon which to
assert that the enol form would necessarily be present in the
keto-containing compound described in CA ‘566. Accordingly,
the examiner has not met her initial burden of proof.
Consequently, as in the rejection based on CA ‘389, we are not
compelled to consider the sufficiency of the declaration of
Dr. Lang.
In summary, the examiner’s rejection of claims 11 and 12
under 35 U.S.C. § 102(b) as anticipated by CA ‘389 and the
rejection of claims 11 and 12 under 35 U.S.C. § 103(a) as
unpatentable over CA ‘566 are reversed.
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