Appeal No. 2003-1241 Page 6
Application No. 09/808,433
question (e.g., see the first full paragraph on page 310 of Olive). More importantly, the
declaration evidence begs the issue of whether Olive’s catalyst complex will at some
point during the reaction, for example, after a reaction time of 180 minutes, disassociate
into constituents which are the same as those of the appellants’ claimed composition.
With further regard to this matter, we here reiterate the earlier mentioned point
that the comparative data of the Schertl declaration shows similar activities for Olive’s
tested composition and the appellants’ tested composition after a reaction time of, for
example, 180 minutes. As previously mentioned, the appellants state that these similar
activities after the first thirty minutes are due to the competition reaction. However, it is
also conceivable that these similar activities are due to Olive’s catalyst complex
disassociating more completely as the reaction time increases.
Thus, at best, the declaration evidence is simply inconclusive as to whether the
here claimed composition is actually different from the composition which is ultimately
formed during use of Olive’s catalyst complex. It follows that the appellants have failed
to carry their above discussed burden of proof. We shall sustain, therefore, the
examiner’s § 103 rejection of all appealed claims as being unpatentable over Olive in
view of Stahl.2
The decision of the examiner is affirmed.
2 A discussion of the Stahl reference is unnecessary in light of our disposition of this
appeal.
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