Appeal No. 2005-1236
Application No. 10/065,796
function. See In re Schreiber, 128 F.3d 1473, 1477-78, 44 USPQ2d
1429, 1432 (Fed. Cir. 1997)(“[W]here the Patent Office has reason
to believe that a functional limitation asserted to be critical for
establishing novelty in the claimed subject matter may, in fact, be
an inherent characteristic of the prior art, it possesses the
authority to require the applicant to prove that the subject matter
shown to be in the prior art does not possess the characteristic
relied on”).
Moreover, we find that Hertl teaches using a very limited
number of zeolites as hydrocarbon-removing materials.
Specifically, Hertl teaches (column 4, lines 5-12) that:
Some preferred zeolites are faujasite type,
especially preferred of which is ultra stable Y, (USY)
preferably with SiO2/Al2O3 mole ratios of greater than
about 5, pentasil type, preferred of which are ZSM type
such as ZSM-5, most preferred of which have SiO2/Al2O3
mole ratios of greater than about 25, and mordenite, and
beta zeolite, and combinations of these.
Hertl then goes onto exemplify four pentasil zeolites (ZSM-5), one
beta zeolite, two faujasites (ultra stable y zeolites) and one
mordenite. See Table 2, columns 5 and 6. Of these eight
exemplified zeolites, four have Si to Al mole ratios of less than
50 (atom ratio of less than about 25). Id. Thus, we concur with
the examiner that even without the actual experiments discussed in
Hertl, one of ordinary skill in the art would have readily
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