Appeal No. 2000-1872
Application No. 09/087,746
that the examiner has provided no evidence which would suggest the presence of organic
pollutants and undesirable algae or weeds in the same location where one would
recognize that such a need exists. Also, to the extent that the examiner urges that "[t]he
selection of each ingredient and concentration is a result effective parameter chosen to
obtain the desired effects," we would note that the examiner has not provided the facts or
evidence which would reasonably establish any of the parameters of the appealed claims
to be "result effective variables" subject to optimization. We note that the burden is on the
examiner to provide a reason, based on the prior art or knowledge generally available in
the art, as to why it would have been obvious to one of ordinary skill in the art to arrive at
the claimed invention. Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281,
297, n.24, 227 USPQ 657, 667, n.24 (Fed. Cir. 1985). Here, we find no reason stemming
from the prior art, and the examiner has not provided the substantive evidence, which
would have led a person having ordinary skill to the claimed invention. In our judgment, the
only reason or suggestion to modify either Levy or Wilson in the manner proposed by the
examiner comes from appellants’ specification. Accordingly, we reverse the rejection of
claims 1 - 20 under 35 U.S.C. § 103 as unpatentable over Levy, Bok and Wilson.
Other Issues
In reviewing the record of this application for purposes of considering this appeal,
we could not help but note that the file record does not indicate that a patent search had
been performed in Class 435 of the U.S. Patent Classification System. It would appear
that class 435, subclasses 260 and 260.2 would be particularly relevant to the presently
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