Appeal No. 1999-1004
Application 08/764,439
and that one of ordinary skill in the art would naturally
look to both areas for any advances or teachings.
(answer, page 6).
We find that in fact the primary references of Saeki
and Washizu refer to leuco crystal violet, whereas the
secondary references of Shibahashi and Kohmura refer to
crystal violet lactone. In their reply brief, appellants
also recognize this difference. (reply brief, page 2-3).
The examiner fails to address this issue. That is, the
examiner does not explain why one of ordinary skill in
the art would have been led to utilize the antioxidant
set forth in Shibahashi and the developing agent/reducing
agent set forth in Kohmura, whereby each of these systems
in these secondary references utilize a crystal violet
lactone, in the system of Washizu or Saeki which utilize
a leuco crystal violet. We note that the examiner bears
the initial burden of factually supporting a prima facie
conclusion of obviousness. In re Oetiker, 977 F.2d 1443,
1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992); In re
Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed.
Cir. 1984). Here, the examiner does not explain why one
of ordinary skill in the art would have been motivated to
utilize the organosulfur antioxidant of Shibahashi in the
system of Saeki or Washizu. Also the examiner has not
explained why one of ordinary skill in the art would have
been motivated to use the developing agent of Kohmura in
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