Appeal No. 2003-0366
Application 09/349,759
93, 16 USPQ2d 1897, 1900-01 (Fed. Cir. 1990)(in banc); In re Payne, 606 F.2d 303, 315-17,
203 USPQ 245, 254-56 (CCPA 1979).
Accordingly, since a prima facie case of obviousness has been established over the
combined teachings of Beck and the Cattanach references by the examiner, we have again
evaluated all of the evidence of obviousness and nonobviousness based on the record as a whole,
giving due consideration to the weight of appellants’ arguments and the evidence in the
specification Examples as relied on in the brief. See generally, In re Johnson, 747 F.2d 1456,
1460, 223 USPQ 1260, 1263 (Fed. Cir. 1984); In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ
785, 788 (Fed. Cir. 1984); In re Rinehart, 531 F.2d 1048, 1052, 189 USPQ 143, 147 (CCPA
1976).
We have carefully considered all of appellants’ arguments and the evidence presented in
the specification as relied on by appellants in the brief. In view of the substantial evidence we
find in Beck and the Cattanach references incorporated by Beck, we cannot agree with
appellants’ contention that the examiner has failed to provide a factual foundation for finding a
prima facie case of obviousness. Because appellants have not submitted argument with respect
to the evidence in the applied references, we now consider the objective evidence of
nonobviousness in the specification on which appellants rely in the brief. See Dillon, 919 F.2d at
692-93, 16 USPQ2d at 1901; Payne, 606 F.2d at 315, 203 USPQ at 256.
Appellants rely on the comparisons provided in specification Examples I and II and the
results thereof reported in specification Table I. The comparisons involve an untreated ZSM-5
catalyst, designated “A,” the silylated modification of that catalyst, designated “B,” and the steam
treated modification of the silylated catalyst representing claim 36, designated “C.” Appellants
state that the claimed zeolite catalyst “C” exhibited “higher yields of aromatics . . . along with a
lower rate of coking” than the other zeolite catalysts (brief, page 5). Appellants state in the
specification that silylated catalysts B and C “exhibited less coking than control Catalyst A which
had not been treated,” and that silylated catalysts B and C had higher yields of aromatics than
untreated catalyst A, with catalyst C which was steam treated achieving “[a] additional increase”
in aromatics compared to catalyst B (pages 11-15). We note that there appears to be little
different between the silylated catalysts B and C with respect to the “Composition of Liquid
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