Appeal 2006-2667
Application 10/257,952
increase the magnesium compound proportion of the raw water passing
through the bed, and substitute or replace hardening constituents with the
proportion of magnesium" (id.). There is reasonableness in the Examiner's
position that the magnesium compound proportion would increase in water
passing through Mackintosh's bed of calcium carbonate or dolomite. Indeed,
this result would appear to be a necessary consequence, and the Appellant
does not argue otherwise. On the other hand, there is no apparent support
whatsoever, and the Examiner proffers none, for the Examiner's position that
other hardening constituents in the water would be replaced by the increased
portion of magnesium. To the contrary, Mackintosh expressly teaches as his
desired goal increasing a non-magnesium hardening constituent, namely, the
calcium content in the water passing through his treatment bed (col. 2, ll. 11-
32).
Conclusion of Law for the § 103 Issue
The Examiner has failed to carry his initial burden of establishing a
prima facie case of obviousness by pointing to some teaching or suggestion
in Mackintosh for the appealed claim limitation that a proportion of
magnesium and/or magnesium compounds is increased at the expense of the
proportion of the other hardening constituents. We cannot sustain, therefore,
the § 103 rejections of claims 1-4, 6, and 11-13 as being unpatentable over
Mackintosh or of claim 5 as being unpatentable over Mackintosh in view of
Hann.
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