Appeal No. 94-2441
Application 07/821,314
noted, the comparative examples use copolymers which are either
different chemically from those of the closest prior art or when
using copolymers of the prior art, the materials and amounts of
monomers are substantially different. Thus, the data of record
relied on by appellants is not based upon a comparison of their
claimed invention with the closest prior art. In re Johnson, 747
F.2d 1456, 1460, 223 USPQ 1260, 1263 (Fed. Cir. 1984). Although
the comparative examples relied on “fall within the scope of the
disclosure” of El-Sayed, appellants have not shown that these
examples are so close to the working examples in the relied upon
patent, that identical results would have been expected had the
El-Sayed working examples been duplicated.
To the extent that appellants have separately argued the
subject matter defined by claims 16, 20 and 21 (Reply Brief, page
4), we find that the subject matter of these claims would have
been obvious in view of the disclosures in El-Sayed at column 5,
lines 5-9.
Based on the above, we agree with the examiner’s ultimate
conclusion that the claimed subject matter would have been
obvious within the meaning 35 U.S.C. § 103 to a person of
ordinary skill in the art. We, therefore, affirm the rejection
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