Appeal No. 1996-0716
Application 08/107,661
produces no new compounds but only the compounds of the prior
art but by a new less expensive, non-polluting process which
produces the prior art compounds in very good yields with high
selectivity. On page 5 of our decision, we specifically
analyzed appellants' disclosure from page 1, lines 4 through
10 of the specification and found said disclosure represented
that except for the compound 4-methylsulfonyl-1-methyl-2-
chlorobenzene which is disclosed by Ludvik, appellants'
process produces "novel compounds." Thus, appellants now
attempt to retreat from their representation on page 1, lines
4 through 10 of the specification that except for 4-
methylsulfonyl-1-methyl-2-chlorobenzene the intermediates
prepared by their process are different from (novel over)
Ludvik's compounds. However, as the court observed in In re
Ruff, 256 F.2d 590, 596, 118 USPQ 340, 346 (CCPA 1958):
When a man, or a witness, or an applicant for a patent,
without knowing how it is going to affect his interest,
makes a statement which he later attempts to deny when he
has found it is against his interest, he will not be
believed unless he produces convincing proof of his later
assertion.
We have been provided no adequate explanation by appellants in
their request for why we should now accept their change of
position. Moreover, we could not have "misapprehended or
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