Appeal No. 1999-2161 Page 7
Application No.08/475,127
Moreover, appellants admit that “both hydroquinones and
sulfur compound sulfur accelerators have been used separately to
control scorch during compound”. (brief, page 14). Hence, to
combine two or more of these materials is a matter of
obviousness. In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069,
1072 (CCPA 1980).
Appellants argue that the examiner has not shown that there
exists sulfur-containing compounds that do not cause odor
problems. However, appellants have not shown that their choice
of sulfur-containing compounds avoids odor problems in their
claimed invention. In fact, paragraph 19 of the Groepper
Declaration indicates that appellants’ claimed composition has
odor problems (minimal, albeit). Hence, the issue of whether
the examiner has or has not shown that sulfur-containing
compounds exist that do not have odor problems is moot in view
of the fact that appellants’ composition can have odor problems,
albeit, minimal.
In view of the above, we determine a prima facie case has
been met.
II. Rebuttal Evidence
Appellants rely upon the following Declarations:
1. Joint Declaration of Terry N. Myers, Peter A. Callais
and Leonard H. Palys made of record in this
application on Jan. 22, 1996 (“Myers, Callais, Palys
Joint Declaration”). (Paper No. 8).
2. Supplemental Declaration by the same three Declarants
made of record in this application June 13, 1996
(“Supplemental Declaration”). (Paper No. 10).
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