Appeal No. 1997-1536
Application 08/342,817
In submitting evidence asserted to establish unexpected
or improved results, there is also a burden on the party
submitting the evidence to indicate how the proposed
comparison claimed to represent their claimed invention is
considered to relate to the examples intended to represent the
prior art and, particularly, how the examples said to be
representative of the prior art do, in fact, represent the
scope of the prior art. See
In re Borkowski, 505 F.2d 713, 718, 719, 184 USPQ 29, 33
(CCPA 1974); In re Goodman, 476 F.2d 1365, 1369, 177 USPQ 574,
577 (CCPA 1973). This appellants have not done. Accordingly,
we affirm the examiner's rejection of claims 10 and 11 over
Marten.
THE OBVIOUSNESS DOUBLE PATENTING REJECTION
Appellants have argued on page 11 of their brief, based
on the examples in the aforementioned Tables, that the claimed
carbonaceous chars of claims 10 and 11 "can be patentably
distinct from those of U.S. Patent No. 5,356,849." Appellants
also concede immediately thereafter that "it is conceivable
that carbonaceous chars may be produced by the present
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