Appeal No. 95-0192
Application No. 07/914,228
14, 16 (CCPA 1972); In re Heyna, 360 F.2d 222, 228, 149 USPQ
692, 697 (CCPA 1966). Upon making a factual, evidentiary
inquiry, see
In re Johnson, 747 F.2d 1456, 1460, 223 USPQ 1260, 1263 (Fed.
Cir. 1984), we are convinced that appellants have not met
their burden.
Initially, we find that the showing in the Dueber
declaration is factually deficient. It fails to indicate the
types of analysis techniques employed to determine the rate of
sedimentation, the acceptability of the analysis techniques
employed in the art, the margin of error applicable to the
analysis techniques employed and the meaning of the “fast” and
“slow” results. Absent such evidentiary foundation, the
significance of the results demonstrated cannot be
ascertained.
Secondly, we find that the showing in the Dueber
declaration is not reasonably commensurate in scope with the
degree of protection sought by the appealed claims. See In re
Kulling, 897, F.2d 1147, 1149, 14 USPQ2d 1056, 1058 (Fed. Cir.
1990);
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