Appeal No. 1997-3886
Application No. 08/232,460
treatment with an atmosphere of “about . . . 99% volume” argon
and “about 1%
. . . volume” of krypton, xenon or neon (see claim 74 on
appeal). Although argon and nitrogen are compared many times
in the Declaration (presumably at or near 100% volume; see
Tables 1, 3, 18 and 19), there are no comparative data
representing the claimed subject matter as noted above, i.e.,
99% argon and
1% of any of the three noble gases. Accordingly, the
comparative evidence is not commensurate in scope with the
claimed subject matter. Appellant/declarant has not presented
any convincing technical reasoning or argument that the data
submitted would permit conclusions or be predictive of
unexpected results for the entire scope of the claimed subject
matter.
D. Other Issues
In the event of further or continuing prosecution of this
application before the examiner, the examiner should
reconsider the patentability of claims 82-85 in view of Fath.
These claims were not included in the rejection on appeal
involving Fath but appear to include subject matter which is
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