Appeal No. 1997-1536
Application 08/342,817
of Hayden. Suffice it to say that there is no probative
comparison for the catalytic activity of the carbonaceous
chars of Marten with appellants' carbonaceous chars' catalytic
activity. Thus, there is no basis in the evidence of record
for appellants' conclusion that their chars, "due to their
enhanced catalytic activity, are patentably distinct from
those of Marten."
We have also considered appellants' data found in Tables
1 through 3 of their specification in reaching our conclusion
that appellants have failed to distinguish their carbonaceous
chars from the carbonaceous chars of Marten. However, the
data found therein are not self-explanatory. Appellants, as
the party asserting the claimed invention yields unexpected or
improved results compared to the prior art, bear the burden of
establishing that any comparison is truly probative and that
any argued results obtained are indeed unexpected or improved.
In re Klosak, 455 F.2d 1077, 1080, 173 USPQ 14, 16 (CCPA
1972). In re Hoch, 428 F.2d 1341, 1343, 1344, 166 USPQ 406,
409
(CCPA 1970).
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