Appeal No. 1997-0540
Application No. 08/209,847
unexpectedly superior to the tensile strength of Comparison
Sample A2.
Secondly, the data proffered by the appellants does not
compare the here claimed process to the closest prior art
which is the process of Ardary. This point is exemplified by
the fact that the compared process in the Declaration places
"the mat under a vented hood for several hours to allow excess
ammonia to escape" (Declaration, page 3, first full paragraph)
whereas Ardary places his mat or composite in an airtight
plastic bag for up to five hours (e.g., again see the
paragraph bridging columns 3 and 4). Additionally, the
compared process of the Declaration included a drying step
after the first sol impregnation which the declarant stated
may have contributed to inferior properties (see item 7 on
Declaration, page 5) whereas the Ardary process includes no
drying step between the sol impregnation and gelation steps.
Concerning this point, we emphasis that an applicant relying
upon a comparative showing to rebut a prima facie case must
compare his claimed invention with the closest prior art. In
re Merchant, 575 F.2d 865, 869, 197 USPQ 785, 788 (CCPA 1978).
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