Appeal No. 2000-0697
Application No. 09/049938
The examiner has not established, however, the specific
similarity between the Riley and claimed process to support the
conclusion that one of ordinary skill in the art would have
reasonably expected that the Riley process is adaptable and
suitable for feedstocks other than those disclosed by Riley. For
example, the examiner has not cited any reference which
demonstrates that processes similar to that disclosed in Riley
have been used to treat feedstocks of the type claimed.
Regarding the claimed amount of silica in the carrier of the
second catalyst, "it is the examiner's position that the minor
amount of silica [disclosed by Riley] can be interpreted as 1, 2,
3, or 4 wt.%" (page 5 of Answer, first paragraph). Again,
however, the examiner has not presented the requisite factual
basis for this conclusion. For instance, the examiner has not
demonstrated that it was known in the art to employ catalytic
carriers comprising the claimed amount of silica in processes
similar to the one claimed. The examiner places the cart before
the horse in stating that "the applicant does not show that a
catalyst that contains 3 wt.% of silica is better than a catalyst
that contains about 1 or 2 wt.% of silica" (id.). It is the
examiner's burden, in the first instance, to establish a prima
facie case of obviousness for the claimed amount of silica in the
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