Appeal No. 2001-2443
Application 09/108,541
teaches counter current recycling the effluent to lower color, AOX, and COD through the
bleach stages (Examiner’s Answer, page 5, lines 10-12). The Examiner then concludes
it would have been obvious to recycle the chlorine dioxide effluent to the oxidative
extraction stages as being taught by Carles or Ibister and further to lower the water and
steam consumption (Examiner’s Answer, page 5, lines 12-16).
Initially, we note that the Examiner bears the initial burden, on review of the prior
art or on any other ground, of presenting a prima facie case of unpatentability. If that
burden is met, the burden of coming forward with evidence or argument shifts to the
applicant. In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir.
1992). Where the Examiner fails to establish a prima facie case, the rejection is
improper and will be overturned. In re Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596,
1598 (Fed. Cir. 1988)
The Appellants point out that their claims preclude recycling the filtrates to a
recovery boiler. (Reply Brief, page 7, lines 21-25, page 8, lines 3-6). They further point
out that the principal reference, Maples teaches recovery of the chloride by recycling the
filtrates to a recovery boiler (Reply Brief, page 8, line 7 - page 9, line 37). Finally, they
note that Maples does not teach mixing D1 and/or D2 stage filtrate with the brown stock
entering the initial extraction phase. (Reply Brief, page 11, lines 17-20)
We agree with the Appellants. We are unable to find where the Examiner has
pointed to a teaching in the Maples, Carles, Ibister, or Li references which would lead
one of ordinary skill in the art to the process as claimed; specifically: (1) to prohibit
recovering the filtrate by a conventional recovery boiler, and (2) to recycle the filtrate
from the D1 and/or D2 stages, mix it with the brown stock, and subject the mixture to the
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