Appeal No. 1997-2632
Application No. 08/163,902
is known to mix natural diatomite with soil or compost to
create an insecticidal soil amendment for flower or planting
beds” (brief, page 5). Moreover, the examiner has relied on
appellant's admitted fact that tree bark has been used in
combination with diatomite in a compost (final rejection, page
3 and answer,
page 3).
Since claims 3 and 6 are drawn to a soil amendment
product that contains diatomite and composted bark that
appears to substantially embrace the admitted prior art
diatomite/tree bark compost product, we agree with the
examiner that a prima facie case of obviousness of the claimed
product has been established by the examiner. We note that no
convincing argument or evidence has been furnished by
appellant establishing a patentable distinction between
appellant's soil amendment product and that of the prior art.
Consequently on this record, we shall affirm the examiner's §
103 rejection of claims 3 and 6.
CONCLUSION
To summarize, the decision of the examiner to reject
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