Appeal No. 97-4079
Application No. 08/310,592
Third, the evidence presented in the declaration is not
commensurate in scope with the claims. See In re Grasselli,
713 F.2d 731, 743, 218 USPQ 769, 778 (Fed. Cir. 1983); In re
Clemens, 622 F.2d 1029, 1035, 206 USPQ 289, 296 (CCPA 1980).
The appellant's claim 1 encompasses the use of any polyketone,
but comparative tests are presented only for a neat polyketone
homopolymer formed from ethylene and carbon monoxide and a
neat polyketone copolymer formed from ethylene, carbon
monoxide, and propylene. We find in the evidence of record no
reasonable basis for concluding that the great number of
materials encompassed by appellant's claims would behave as a
class in the same manner as the particular materials tested.
See In re Lindner, 457 F.2d 506, 508, 173 USPQ 356, 358 (CCPA
1972); In re Susi, 440 F.2d 442, 445-46, 169 USPQ 423, 426
(CCPA 1971). In addition, unlike the comparative tests, claim
1 does not require that the first and second means comprise
the same polyketone polymer.
We have also carefully considered the declaration under
37 CFR § 1.132 of John E. Flood (Paper No. 12, filed November
20, 1996). We find the statements contained therein more
supportive of a conclusion of obviousness than of
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