Appeal No. 1997-1513
Application No. 08/249,736
prior art. Moreover, such evidence relied upon must be1
reasonably commensurate in scope to the subject matter
claimed. See Ex parte Gelles,
22 USPQ2d 1318, 1319 (Bd. of Pat. App. & Int. 1992) and cases
cited therein. It is our view, as it was the view of the
examiner, that appellants have failed to meet their legal
burden in the above respects. First of all, with respect to
the examples said to represent the claimed invention, Table 1
at page 29 of the specification illustrates seven examples
apparently within the scope of the claimed invention. The
appealed claims, however, are much broader in scope, covering
thousands of dye combinations with no restriction on the
relative amounts of the individual dyes. Thus, it is not
apparent to us, and appellants have not attempted to
establish, that there is an adequate basis for reasonably
concluding that the great number and variety of dye
combinations included by the claims, would behave in the same
manner as the tested dye combinations. As we stated earlier,
1This principle is particularly applicable in the present
appeal, since co-applicant Kazuya Ogino is a co-inventor of
the applied prior art Ogino reference.
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