Appeal No. 1997-2671
Application No. 08/446,473
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). As explained above, the Lokkesmoe
composition is virtually indistinguishable from the
composition defined by appealed independent claim 1 and
therefore is quite plainly the closest prior art. It follows
that the appellants’ specification evidence which relates to
some other prior art composition has little if any probative
value with respect to the issues raised by the rejection
before us.
As a consequence, we will sustain the examiner’s section
103 rejection of the claims on appeal as being unpatentable
over Lokkesmoe in view of Fraula.
The decision of the examiner is affirmed.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED
7
Page: Previous 1 2 3 4 5 6 7 8 9 Next
Last modified: November 3, 2007