Appeal No. 94-2033
Application No. 07/982,141
without deciding, that the Rule 131 Declaration does not
constitute sufficient evidence to antedate Lentz. Regardless, we
hold that the combined disclosures of Lentz, Horner and Petro are
insufficient to support a conclusion of obviousness of
appellant's claimed method.
Lentz here constitutes the closest prior art, and the Lentz
method bears close relationship to appellant's claimed method
except that appellant recites an aromatic nitro compound
"contaminated with sulfur" (independent claim 1). On its face,
the Lentz patent does not disclose or suggest nitro aromatic
reactants containing even trace amounts of sulfur.
In this regard, the previous merits panel recognized that
"the respective methods [Lentz and appellant] differ . . . in the
explicit statement of the present claims that the starting
material is contaminated with sulfur" (see parent application
Serial No. 07/473,006, Paper No. 12, page 3 (Appeal No. 92-0636,
decided September 25, 1992)). The previous panel made up that
difference or deficiency in Lentz by relying on the acknowledged
state of the prior art. According to the previous merits panel,
"appellant has admitted (specification, pages 1-2) that such
starting materials [aromatic nitro compounds of the type
disclosed by Lentz] are routinely contaminated with sulfur" and
"appellant admits that aromatic nitro compounds are routinely
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