Appeal No. 94-4145
Application No. 07/882,252
Ogawa declarations and the examples at pages 28-29 of the
specification, we are mindful that appellants have the burden
of proof. See In re Klosak, 455 F.2d 1077, 1080, 173 USPQ 14,
16 (CCPA 1972); In re Heyna, 360 F.2d 222, 228, 149 USPQ 692,
697 (CCPA 1966). Upon making a factual, evidentiary inquiry,
see In re Johnson, 747 F.2d 1456, 1460, 223 USPQ 1260, 1263
(Fed. Cir. 1984), we are convinced that appellants have not
met their burden.
We initially note that the claimed subject matter is not
compared with the closest prior art. See In re Baxter
Travenol Labs, 952 F.2d 388, 392, 21 USPQ2d 1281, 1285 (Fed.
Cir. 1991); In re De Blauwe, 736 F.2d 699, 705, 222 USPQ 191,
196 (Fed. Cir. 1984). From our perspective, the closest prior
art is the Yukikazu reference since it is directed to an
insecticide composition which has the same ingredients as that
claimed. Appellants have not explained why the comparative
example in the Ogawa declarations is closer than that shown in
the Yukikazu reference.
We also note that the showings in the examples at pages
28-29 of the specification are not reasonably commensurate in
scope with the degree of protection sought by the appealed
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