Appeal No. 2004-1862
Application No. 09/784,041 Page 7
chafer rubber of Muraoka would also enhance properties of the
rubber composition of Muraoka that have been identified as being
of interest for such a chafer rubber. While we are cognizant of
a difference between the chafer rubber of Muraoka and the
adhesive composition (used as a cushion layer or splice material
in a tire) of Majumdar, we are also aware of the many
commonalities as pointed out by the examiner as well as the
unrefuted factual findings of the examiner concerning the
conventional use of anti-reversion agents with natural rubbers,
such as employed in Muraoka’s rubber composition. Here,
appellant has not satisfactorily explained why the examiner’s
position is in error given those factual findings of the examiner
that have not been refuted on this record.
Concerning appellant’s allegation of unexpected results
based on the test results reported in appellant’s specification,
we note that the question as to whether unexpected advantages
have been demonstrated is a factual question. In re Johnson, 747
F.2d 1456, 1460, 223 USPQ 1260, 1263 (Fed. Cir. 1984). Thus, it
is incumbent upon appellant to supply the factual basis to rebut
the prima facie case of obviousness established by the examiner.
See, e.g., In re Klosak, 455 F.2d 1077, 1080, 173 USPQ 14, 16
(CCPA 1972). Appellant, however, do not provide an adequate
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