Ex parte BUENDIA et al. - Page 9




          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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