6
matter claimed is not identically disclosed or described. Accordingly, we shall next
consider the rejection of the claims over Gladrow ‘818 under 35 U.S.C. § 103. We
found Supra that Gladrow ‘818 discloses each of the elements required by the
claimed subject matter. Based upon the above findings, we conclude that it would
have been obvious to the person having ordinary skill in the art to have prepared a
catalyst suitable for fluidizable cracking within the scope of the claimed subject
matter by following the disclosure of Gladrow ‘818. Therefore, the disclosure of
Gladrow ‘818 is sufficient to establish a prima facie case of obviousness.
As to claim 18 which requires the presence of an aluminum salt of a carboxylic acid,
it is our view, based upon the findings supra, that as the reference of record discloses the
same components prepared under the same conditions required by the claim subject
matter, aluminum salt would be formed to the same extent as in the claimed subject matter.
It is well settled that when appellants’ product and that of the prior art appears to
be identical or substantially identical, the burden shifts to appellants to provide
evidence that the prior art product does not necessarily or inherently possess the
relied-upon characteristics of appellants’ claimed product. In re Fitzgerald, 619
F.2d 67, 70, 205 USPQ 594, 596 (CCPA 1980); In re Best, 562 F.2d 1252,
1255, 195 USPQ 430, 433-34 (CCPA 1977). In re Spada, 911 F.2d 705, 708,
15 USPQ2d 1655, 1658 (Fed. Cir. 1990). On the record before us, however, no
comparative evidence is present directed to differences, between the invention and
Gladrow ‘818, in the formation of an aluminum salt of formic or acetic acid.
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