Appeal 1997-1635
Application 08/319,667
Maybe, inventor Schropp had more incentive to succeed
than did applicants. In other words, maybe applicants in
presenting their comparison did not try hard enough to obtain
a result consistent with the European Patent Application.
Compare In re Reid, 179 F.2d 998, 1002, 84 USPQ 478, 481
(1950) (in no way reflecting on the good faith of the makers
of the affidavits *** the failures of experimenters who have
no interest in succeeding should not be accorded great
weight); see also In re Michalek, 162 F.2d 229, 74 USPQ 107
(CCPA 1947).
In any event, the possible inconsistency between BASF's
representations in the European Patent Application vis-a-vis
their showing in this application demands some attention in
any further prosecution.
D. Decision
Upon consideration of the record, and for the reasons
given, it is
ORDERED that the decision of the examiner rejecting
claims 1-10 as being unpatentable under 35 U.S.C. § 103 over
Japan is affirmed.
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