Appeal 2007-2208
Application 10/650,510
incorporating that patent by reference as describing a catalyst support for use
therein. See, e.g., Zoeller ‘043, col. 3, ll. 53-65 and col. 6, ll. 2-5 and Zoeller
‘673, col. 4, ll. 48-64 and col. 5, ll. 22-30). Rather, Appellants make the
same arguments concerning the particle size as made against the Examiner’s
rejection of representative claim 1. For the reasons discussed above, we are
not persuaded by these particle size arguments.
Moreover, Appellants refer to Comparative Example 1 of their
Specification and argue that the claimed catalyst particles possess
unexpectedly improved fluidization properties in comparison with
Amberesorb 572, a particle disclosed in the Zoeller patents, that was tested
in this Comparative Example (Specification ¶ 0072). However,
Specification comparative Example 1 discloses or reports nothing
concerning unexpected results for the claimed particles. Rather, the
Comparative Example 1 merely shows that Ambersorb 572 particles were
loaded with glass frit in a small glass tube and fluidization was achieved at a
gas hourly space velocity of 7500 hr-1. 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 Appellants 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). Here, the
Appellants cursory reference to Comparative Example 1 of the Specification
is clearly inadequate to satisfy Appellants’ burden to demonstrate
unexpected results that are commensurate in scope with the claimed
invention.
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