Ex parte TEUFEL - Page 9




          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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