Appeal 2007-1254
Application 10/352,542
but exemplify many gas-generating deflagrating compositions
without sulfur (col. 4, ll. 27-35; Examples 3-8 at col. 7, ll. 5-40).
“Even when obviousness is based on a single prior art reference, there
must be a showing of a suggestion or motivation to modify the teachings of
that reference.” In re Kotzab, 217 F.3d 1365, 1370, 55 USPQ2d 1313, 1316-
17 (Fed. Cir. 2000). An express suggestion to substitute one equivalent for
another need not be present to render such a substitution obvious. See In re
Fout, 675 F.2d 297, 301, 213 USPQ 532, 536 (CCPA 1982). “These terms
merely set forth the intended use for, or a property inherent in, an otherwise
old composition. As the board pointed out, such terms do not differentiate
the claimed composition from those known to the prior art. [Citations
omitted].” In re Pearson, 494 F.2d 1399, 1403, 181 USPQ 641, 644 (CCPA
1974).
Applying the preceding legal principles to the factual findings in the
record of this appeal, we determine that the Examiner has established a
prima facie case of obviousness in view of the reference evidence, which
prima facie case has not been adequately rebutted by Appellants’ arguments.
As shown by factual findings (1) and (4) listed above, we determine that
Pawlak discloses a sulfur free deflagrating gas generating formulation
including oxidizing and reducing agents within the scope of claims 30 or 32
on appeal, as well as teaching the inclusion of ammonium m-nitrobenzoate
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