Appeal No. 2002-1010 Page 5
Application No. 09/206,210
claimed by appellants but finds that there is a reasonable basis
to infer that the catalyst of the reference is identical or only
slightly different from those claimed (Answer, pages 4 and 8-9).
The examiner applies Bowes and Kuehl for their teaching of
methods of making dealuminated zeolites for use in cracking
processes, which methods include the steps of steaming,
extraction of aluminum with a complexing agent, and calcination
(Answer, page 4). From these findings, the examiner concludes
that it would have been obvious to one of ordinary skill in the
art to have used either the dealuminated zeolites of Kuehl or
Bowes in the process of EP ‘060 because these secondary
references teach that dealuminated zeolite catalysts may be used
in cracking processes and all the references are directed to
“high Si MFI type zeolites.” Answer, paragraph bridging pages 4-
5. We disagree.
The mere finding that the silica/alumina atomic ratios of EP
‘060 and the claimed atomic ratio are similar (i.e., overlapping)
is not per se sufficient evidence to support the examiner’s
“reasonable basis” that the catalysts of the prior art and the
claims are identical or substantially identical. See In re
Spada, 911 F.2d 705, 708, 15 USPQ2d 1655, 1657-58 (Fed. Cir.
1990); In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433,(CCPA
1997). Catalysts may have the identical silica/alumina atomic
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