Appeal No. 2001-2490
Application No. 09/388,056
use operating temperatures so much outside the range taught by
Holiday.
Furthermore, the examiner acknowledges that Holiday is
“silent” about the acidity of the alumina-silica catalyst but
argues that it “would inherently be an acidic material” since
appellant discloses such materials as acidic (Answer, page 5,
citing the specification, page 4, ll. 4-13). Holiday teaches
that the purification zone catalyst is a deactivated or “spent”
catalyst, i.e., a catalyst rendered inactive for the polymerization
of butene-1 or isobutene (col. 1, ll. 40-49; col. 1, l. 64-col. 2,
l. 2). The examiner states that appellant has not demonstrated by
evidence that the inactive catalyst of Holiday would not be acidic
(Answer, page 6). However, the initial burden of establishing that
the spent catalyst of Holiday would have necessarily been acidic
rests with the examiner. See In re Oetiker, 977 F.2d 1443, 1445,
24 USPQ2d 1443, 1444 (Fed. Cir. 1992); In re Oelrich, supra. As
discussed above, reference to appellant’s specification does not
provide sufficient evidence that all aluminas, silica-aluminas, and
clays are acidic, much less any evidence regarding the inactive or
spent catalysts of Holiday.
For the foregoing reasons and those stated in the Brief and
Reply Brief, we determine that the examiner has failed to establish
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