Appeal No. 2002-0663 Page 7
Application No. 09/504,963
fairly suggests to one skilled in the art.” In re Wesslau, 353 F.2d 238, 241, 147
USPQ 391, 393 (CCPA 1965); see also In re Mercer, 515 F.2d 1161, 1165-66,
185 USPQ 774, 778 (CCPA 1975).
Therefore, it is our opinion that the examiner failed to meet his burden2 of
providing the evidence necessary to establish a prima facie case of obviousness.
Accordingly we reverse the rejection of claims 1-4 and 6-8 under 35 U.S.C.
§ 103 as obvious over Walters, Belle-Aire and Kuhns.
Claim 5:
The examiner relies on Walters, Belle-Aire and Kuhns as discussed
above. According to the examiner (Answer, page 7), “[t]he new composition
resulting from the combination of Walters et al[.], Belle-Aire, and Kuhns includes
all that is recited in claim 5 except for the new composition comprising a chelator
such as EDTA. However, Eigen et al[.] disclose a personal deodorant
composition comprising EDTA.”
In response, appellant argues (Brief, page 15), “[f]or the reasons
discussed above, Walters, [Belle-Aire] …, and Kuhns fail to make obvious the
claimed air freshener composition. Eigen fails to remedy the defects of those
cited references. Therefore, a prima facie case of obviousness has not been
made out with respect to [c]laim 5….” We agree, accordingly, we reverse the
2 The initial burden of presenting a prima facie case of obviousness rests on the examiner. In re
Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992).
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