Appeal 97-1554
Application 08/495,593
788 (CCPA 1978) (an applicant relying upon a comparative
showing to rebut a prima facie case of obviousness must
compare claimed invention with the closest prior art).
In this case, the closest prior art would have been Rath,
which describes a fuel having polyetheramines. Manifestly,
the specification does not purport to compare the fuels of
Rath with the fuels of claim 7. We find it somewhat curious
that the comparison was not made given that applicants were
actually aware of Rath (specification, page 6, lines 17-18).
b.
The examiner considered the Schwahn declaration
(Examiner's Answer, page 6) and declined to give the
declaration controlling weight. The examiner held that the
declaration did not rebut the evidence supplied by the prior
art and the examiner is correct. One skilled in the art
necessarily would have expected an improvement with a
polyisobutylamine free of chlorine. See Kummer, col. 5, lines
62-68 set out in Finding 21, supra). Nothing in the Schwahn
declaration explains why the improved results reported therein
would have been unexpected.
c.
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