Appeal No. 2001-0175
Application No. 08/857,585
below the claimed ratio (see page 15 of principal brief).
However, inasmuch as Eberly specifically teaches that zeolites
having a silica/alumina ratio of greater than 40 impart greater
stability to heat, steam and acid, it can hardly be said that the
Declaration and specification results would be considered
unexpected by one of ordinary skill in the art. Significantly,
we note that Declarant Noda does not characterize the results of
the Declaration as unexpected.
As a final point, we disagree with appellants that "[a]
major issue in the appeal is whether one of ordinary skill in the
art would seek to modify the ratio of silica to alumina disclosed
in the primary reference with a higher ratio disclosed in the
secondary reference" (page 1 of Reply Brief, last paragraph).
The issue is not modification of the primary reference since
Kawabata is silent regarding the silica/alumina ratio. The issue
is, in the face of such silence, would one of ordinary skill in
the art select the claimed ratio for the purpose of attaining
greater stability to heat, steam and acid. We find that the
prior art applied by the examiner provides an answer in the
affirmative.
In conclusion, based on the foregoing, the examiner's
decision rejecting the appealed claims is affirmed.
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