Appeal 2007-4100
Application 09/962,971
Moreover, the Appellants have referred to the Schlegel Declaration
and Specification Example 2 to rebut the prima facie case established by the
Examiner (Br. 13-14). According to the Appellants, the Schlegel
Declaration and Specification Example 2 show that the claimed subject
matter imparts unexpected results (id.). We are not convinced that the
Appellants have carried the burden of showing unexpected results. In re
Soni, 54 F.3d 746, 750, 34 USPQ2d 1684, 1687 (Fed. Cir. 1995) (Appellants
have 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 Appellants have 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), but have 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 Appellants.
Even if we were 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
Appellants’ 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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