Appeal No. 2001-0968
Application No. 08/894,423
Claims 1 through 13 on appeal stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Werner in view of Zucchini '961,
Zucchini '840, and Banzi.1 (Examiner's answer, pages 3-4.)
We reverse this rejection. However, we enter below new
grounds of rejection pursuant to our authority as set forth in 37
CFR § 1.196(b) (1997).
The Examiner's Rejection
Under 35 U.S.C. § 103, the initial burden of establishing a
prima facie case of obviousness rests on the examiner. In re
Piasecki, 745 F.2d 1468, 1471-72, 223 USPQ 785, 787-88 (Fed. Cir.
1984). Only when this initial burden is met does the burden of
production shift to the applicants to rebut the prima facie case
of obviousness, e.g. by presenting evidence of unexpected
results. Id. In this case, it is our judgment that the examiner
has not met this initial burden of proof.
Werner1, the principal prior art reference, describes a
Ziegler-Natta catalyst system consisting of (1) a titanium
component containing titanium, magnesium, and chlorine, as well
as a benzene carboxylic acid derivative on an inorganic, oxidic
support material, (2) an aluminum component having the formula
AlR3, wherein R is an alkyl radical having no more than 8 carbon
1 As in the examiner's answer, our citations to Werner are
to the English language translation of record.
3
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