Appeal No. 96-2323
Application 08/116,555
For the above reasons, we hold that the process recited
in appellants’ claim 1 would have been prima facie obvious to
one of ordinary skill in the art over Fan.
When a prima facie case of obviousness has been
established, appellants have the burden of rebutting it by
presenting objective evidence of non-obviousness. See In re
Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir.
1984); In re Keller, 642 F.2d 413, 425, 208 USPQ 871, 882
(CCPA 1981). A final determination regarding obviousness is
then reached by starting anew and evaluating the rebuttal
evidence along with the evidence upon which the conclusion of
prima facie obviousness was based. See In re Rinehart, 531
F.2d 1048, 1052, 189 USPQ 143, 147 (CCPA 1976).
Appellants have submitted a declaration by Kanda (filed
July 7, 1994, paper no. 16) which shows the effect of the
dissolved oxygen concentration of the water-in-oil emulsion
before polymerization on the formation of agglomerates during
polymerization. The declaration indicates (figure 1) that the
amount of agglomerates rises sharply as the dissolved oxygen
concentration is increased above 100 ppb, and Kanda states
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