Appeal No. 1996-3367 Page 9
Application No. 08/480,554
lower sodium chloride ratio method that would necessarily
alleviate any concerns of a skilled artisan that may have been
identified by Böttger. In particular, we note that appellants
suggested comparison of Example 2 of Böttger with appellants'
Example 2 is not convincing in establishing that the ratio of
sodium chloride to iron chloride ever exceeded 0.5 in Example
2 of Böttger (brief, pages 6 and 7). We note, for instance,
that a washing step, a different reaction pressure and
temperature, a larger size reactor, etc. were present in
Example 2 of Böttger as compared to appellants' Example 2.
Contrary to appellants' assertions, we find that it cannot be
ascertained from a direct comparison of the above-noted
examples, the origin of the allegedly differing results due to
the number of unconstrained variables. See In re Dunn, 349
F.2d 433, 439, 146 USPQ 479, 483 (CCPA 1965) ("[t]he cause and
effect sought to be proven is lost here in the welter of
unfixed variables").
In addition, we find that appellants have not
demonstrated that Example 2 in their specification is
reasonably commensurate in scope with the degree of protection
sought by the appealed claims. See In re Kulling, 897 F.2d
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