Appeal 2007-4099
Application 09/962,935
Moreover, the Appellant also has referred to the Schlegel declaration
and Specification Example 2 to rebut the prima facie case established by the
Examiner (Br. 17). According to the Appellant, the Schlegel Declaration
and Specification Example 2 show that the claimed subject matter imparts
unexpected results (id). We are not convinced that the Appellant has carried
the burden of showing unexpected results. In re Soni, 54 F.3d 746, 750,
34 USPQ2d 1684, 1687 (Fed. Cir. 1995) (Appellant has the burden of
rebutting a prima facie case of obviousness); In re Klosak, 455 F.2d 1077,
1080, 173 USPQ 14, 16 (CCPA 1972)(“the burden of showing unexpected
results rests on a party who asserts them”).
Initially, we note that the Appellant has not supplied any copy of the
Schlegel Declaration in the Evidence Appendix section of the Brief as
required by 37 C.F.R. § 41.37(c)(viii) (2004). In fact, the Appellant has
indicated “none” at the Evidence Appendix section of the Brief for the
evidence relied upon in the Brief. Accordingly, we need not consider the
Schlegel Declaration not provided by the Appellant.
Even were we to consider the Schlegel Declaration, we are not
convinced that the Schlegel Declaration and Specification Example 2 would
be sufficient to rebut the prima facie case of obviousness. Contrary to the
Appellant's arguments at page 13 of the Brief, for example, the Schlegel
Declaration does not show preparing Klabunde’s pellets useful for liquid and
gas. Nowhere does the Schlegel Declaration show preparing pellets in the
manner taught by Examples 1-3 of Klabunde. Specifically, we find that the
Schlegel Declaration is silent as to preparing pellets by compacting wet or
dry metal oxide or metal hydroxide powder made from an aerogel or
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