Appeal No. 95-2655
Application 07/912,029
the present invention, with Amvisc and Healon, two
commercially available hyaluronate-containing compositions
that include no magnesium ions.
The examiner notes that the comparison in the Declaration
is with compositions that contain no magnesium ions but the
prior art used in the rejection “clearly contains magnesium”
(answer, pages 5-6). The examiner further states that
“[A]ppellant has presented no evidence to establish the
criticality of the concentrations used by the present
application over the prior art of record” (answer, page 6).
A Rule 132 affidavit (or declaration), to be effective,
must compare the claimed subject matter with the closest prior
art. In re Burckel, 592 F.2d 1175, 1179, 201 USPQ 67, 71
(CCPA 1979). We agree with the examiner that the Amvisc and
Healon compositions, which do not contain “significant
concentrations” of calcium or magnesium ions (see page 2 of
the Mello Declaration), are not the closest prior art.
Yamamoto contains magnesium and calcium ions in similar
concentrations and is the closest prior art of record.
Furthermore, it is not clear if the claimed subject matter was
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