Appeal No. 98-2667
Application No. 08/668,971
o o
5 minutes at 94 C and then 30 minutes at 75 C. The declaration
cooking time was 5 minutes at 90 to 95 C and then 45 minuteso
at 75 C. Further, the declaration provided no indication ofo
the moisture content nor the pressure and temperature of the
grounding process both of which were stated in example 1. For
these reasons, the declaration is not probative. Declaration
evidence must be considered, but will not be considered
probative if it does not address the facts of record. In re
Beattie, 974 F.2d 1309, 1313, 24 USPQ2d 1040, 1042-43 (Fed.
Cir. 1992).
When the prior art appears to provide a product identical
to the product claimed, the appellant has the burden to submit
evidence commensurate in scope with the claims that the
products are different. In re Spada, 911 F.2d 705, 708, 15
USPQ2d 1655, 1658 (Fed. Cir. 1990). Appellant has failed to
direct us to evidence that the products of Gonzalez are
different from the products of claim 11. We affirm the
rejection of claims 11-14 under 35 U.S.C. § 102 as anticipated
by Gonzalez.
The rejection over Madrazo and Mendoza
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