Ex Parte LEPELTIER et al - Page 7


          Appeal No. 1999-0058                                                        
          Application No. 08/701,878                                                  


          skill in the art to arrive at a process encompassed by appealed             
          claim 1, 21, or 22 in order to produce a useful catalyst as                 
          described in Bournonville, motivated by a reasonable expectation            
          of success.  In re O'Farrell, 853 F.2d 894, 904, 7 USPQ2d 1673,             
          1681 (Fed. Cir. 1988).                                                      
               Because there is substantial evidence to support the                   
          examiner's determination of a prima facie case of obviousness,              
          the burden of proof was properly shifted to the appellants to               
          rebut the prima facie case by convincing argument or evidence               
          (e.g., unexpected results).  In re Mayne, 104 F.3d 1339, 1343, 41           
          USPQ2d 1451, 1455 (Fed. Cir. 1997) ("With a factual foundation              
          for its prima facie case of obviousness shown, the burden shifts            
          to applicants to demonstrate that their claimed fusion proteins             
          possess an unexpected property over the prior art.").  The                  
          question as to whether unexpected advantages have been                      
          demonstrated is a factual question.  Id. (citing In re Johnson,             
          747 F.2d 1456, 1460, 223 USPQ 1260, 1263 (Fed. Cir. 1984)).                 
          Thus, it is incumbent upon the appellants to supply the factual             
          basis to rebut the prima facie case of obviousness established              
          by the examiner.  See, e.g., In re Klosak, 455 F.2d 1077, 1080,             
          173 USPQ 14, 16 (CCPA 1972).                                                
               The appellants argue that Bournonville is "generic to the              
          incorporation of [G]roup VIII metal through the use of both                 
          aqueous and organic solution of the metal."  (Appeal brief, page            
          5.)  This argument has no merit.  Bournonville undeniably teaches           
          the impregnation of the support with an aqueous solution of                 

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