Appeal No. 2002-1863
Application No. 09/206,207
with appellants (Brief, pages 14-15) that the examiner has not
supplied any convincing evidence to support the combination of
Glockner with EP ‘060 and Eberly (see the Answer, page 5). The
examiner has not shown any recognition in this art that dienes
would be present in the claimed amounts in the feedstock nor any
desire in this art to remove these dienes. Accordingly, the
combination including Glockner can only have been made in
hindsight. See In re Dembiczak, 175 F.3d 994, 999, 50 USPQ2d 1614,
1617 (Fed. Cir. 1999).
For the foregoing reasons, we determine that the examiner has
not established a prima facie case of obviousness in view of the
reference evidence. Therefore we reverse the examiner’s rejection
based on EP ‘060, Eberly and Glockner.
C. Summary
We reverse the examiner’s rejection of claims 1, 2, 6-9, 12,
13, 15, 17-19 and 27 under 35 U.S.C. § 103(a) over EP ‘060 in view
of Eberly. We also reverse the examiner’s rejection of claims 16
and 20-26 under 35 U.S.C. § 103(a) over EP ‘060 in view of Eberly
and Glockner.
We affirm the examiner’s provisional rejections under the
judicially created doctrine of obviousness-type double patenting of
(1) claims 1, 2, 6-9, 12, 13, 15, 17-19 and 27 over claims 1, 2,
7
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