Appeal No. 2002-1864
Application No. 09/206,208
convincing reasoning, suggestion or motivation as to why one of
ordinary skill in this art would have modified the process of
EP ‘060, with catalysts already possessing silica/alumina atomic
ratios of greater than 175, with the catalyst pretreatment of
Eberly when Eberly teaches that silica/alumina mole ratios of 8
through 20 provide sufficiently increased stability. Accordingly,
we determine that the examiner has not presented convincing reasons
for the proposed combination of references and therefore no case
of prima facie obviousness has been established.2 Thus we cannot
sustain the examiner’s rejection based on the combination of
EP ‘060 and Eberly.
C. Summary
The examiner’s rejection of claims 1, 2 and 4-12 under
35 U.S.C. § 103(a) over EP ‘060 in view of Eberly is reversed.
The examiner’s provisional rejections of claims 1, 2 and 4-12
based on the judicially created doctrine of obviousness-type double
patenting over (1) claims 1, 2, 5-10, 12, 13 and 15 of application
no. 09/206,207; (2) claims 1-14 of application no. 09/206,218;
2Since we determine that no case of prima facie obviousness
has been established, a discussion of appellants’ countervailing
evidence of non-obviousness (Exhibits B and C attached to the
Brief) is unnecessary to this decision.
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