Appeal No. 1997-3886
Application No. 08/232,460
vegetables (see column 2, lines 21-31; column 3, lines 4-12).
The results presented in the Declaration fail to show that
argon is unexpectedly superior to nitrogen monoxide in the
preservation of vegetables. See Table 1 of the Declaration,
where nitrogen monoxide (N2O) yields similar results to argon
for preservation of three vegetables, with both gases
containing carrier oxygen at 8:2 ratios. Declarations under
37 CFR § 1.132 must compare the claimed subject matter with
the closest prior art to be effective. In re Burckel, 592
F.2d 1175, 1179, 201 USPQ 67,
71 (CCPA 1979). Any comparisons in such a Declaration must
show differences to an appreciable degree such that the
difference was actually unexpected. In re Merck & Co., Inc.,
800 F.2d 1091, 1099, 231 USPQ 375, 381 (Fed. Cir. 1986).
Furthermore, any such comparative evidence must be
commensurate in scope or permit conclusions with respect to
the scope of the claimed subject matter. In re Boesch, 617
F.2d 272, 277, 205 USPQ 215, 220 (CCPA 1980); In re Payne, 606
F.2d 303, 315-16, 203 USPQ 245, 256 (CCPA 1979). The claimed
subject matter includes preservation of vegetables by
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