Appeal No. 2001-0771
Application No. 09/103,528
silica to alumina ratio. Therefore, according to the appellants,
Kuehl, taken with Casci, would suggest that there is no
difference between a zeolite produced by dealumination and one
directly synthesized having the same silica to alumina ratio.
Appellants rely on the Martino Declaration to show that an EU-1
zeolite produced by dealumination yields improved results as
compared to a directly synthesized EU-1 zeolite having a similar
silicon to aluminum ratio.
In our view, it is the appellants who have oversimplified
the teachings of Kuehl. Although the examiner found the Martino
Declaration convincing with regard to the prior rejection of
appellants’ “product-by-process” claims under 35 U.S.C. § 102 or
35 U.S.C. § 103 over Casci alone, the examiner found the
declaration evidence unpersuasive with regard to the rejection at
hand. We agree with the examiner that the Martino Declaration
does not overcome the instant prima facie case of obviousness
since Kuehl suggests doing what appellants have done, namely
dealumination of a zeolite material to obtain improved
properties.
Significantly, we find nothing in Kuehl which attributes the
improvement in catalytic activity solely to an increase in the
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