Appeal No. 94-4357
Application No. 07/739,050
by the examiner (Answer, page 6), we determine that balancing
the above cost affecting factors for a given system, depending
on various equipment and process variables, including the
transient price of oxygen, to maximize the cost saving would
have been reasonably expected by one of ordinary skill in the
art, particularly since appellants acknowledge that it is
known that the above cost affecting factors are impacted by
other known process and equipment variables. See Brief, pages
6 and 7.
Secondly, we observe that the showing in the declaration
is not reasonably commensurate in scope with the degree of
protection sought by the appealed claims above. See In re
Kulling, 897 F.2d 1147, 1149, 14 USPQ2d 1056, 1058 (Fed. Cir.
1990); In re Grasselli, 713 F.2d 731, 743, 218 USPQ 769, 778
(Fed. Cir. 1983). While the showing appears to be based on a
single system configuration, the above claims are not so
limited. According to appellants (declaration, page 2,
paragraph 7):
Optimum operation is dependent upon system
configuration, and operating costs are a balance
between the cost for oxygen makeup and the cost of
the power to generate ozone.
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