Appeal No. 2001-0065
Application 09/048,289
Accordingly, we reverse the rejection over Ahs alone.
Turning now to the combination of Ahs with Mannbro, Ahs is as discussed above
and Mannbro is relied upon “if necessary” to teach recycling without refiner or oxygen
treatment. We note that Mannbro clearly illustrates recycling in the fiber line without
further treatment (See, e.g. the Figure, reference numerals10 and feed line to 8) and as
such the Examiner has established a prima facie case of obviousness.
The Appellants first argue that the wrong standard of patentability has been
applied by the Examiner, stating that it is “not the burden of applicant to show
unexpected results” (Appeal Brief, page 5, lines 12 – 13). We believe that the
Appellants have misinterpreted a sentence contained in the rejection, where the
Examiner perhaps inartfully and gratuitously noted that “No unexpected results have
been shown for passing through a single oxygen reactor 2 times compared to 2
separate oxygen reactors” (Examiner’s Answer, page 3, lines 17-18). First, to the
extent this applies to the rejection over Ahs alone the issue is moot as we have
reversed that rejection. Second, to the extent this statement may be said to be
applicable to the rejection over Ahs in view of Mannbro, the discussion contained in the
Examiner’s Answer, page 7, line 15 to page 8, line 17 clearly indicates that the
Examiner’s position on obviousness is founded on the cited art and not predicated upon
a failure of the Appellants to make a showing of unexpected results.
Addressing the substance of the rejection, we note that the Appellants have
argued that the modification of Ahs by removing the reactor “would specifically go
against the teachings of Ahs et al which require the additional oxygen reactor” (Appeal
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