Appeal No. 1998-2415 Page 11
Application No. 08/751,798
yield of 84%, and some of the meat was sliced in the same commercial equipment using a blade having
a primary angle of 40 , resulting in an average yield of 87%. Numerous additional sticks of the sameo
water-added ham luncheon meat were sliced in the same commercial equipment using two different
o o
blades, each having a primary angle of 50 . The yield from one of the 50 angle blades was 90.5%
while the yield from the other was 91.5%. The supplemental declaration (paragraph 5) further states
o o
that the increases in yield of 3.6%, 7.7% and 8.9% for the 40 angle blade and 50 angle blades,
respectively, are commercially significant.
Affidavits or declarations submitted as evidence of unexpected results must compare the
claimed subject matter with the closest prior art. See In re Burckel, 592 F.2d 1175, 1179, 201 USPQ
67, 71 (CCPA 1979). The slicing using a blade having a 28 primary angle in the testing discussed ino
the Flisram declaration is not the closest prior art. The Flisram declarations do not include any testing
using a blade having a primary angle of about 33 , which is the closest prior art, as disclosed byo
McBrady and, thus, are not considered probative evidence of unexpected results.
Moreover, it is well settled that evidence of nonobviousness must be commensurate in scope
with the claims to which it pertains. In re Clemens, 622 F.2d 1029, 1035, 206 USPQ 289, 296
(CCPA 1980); In re Dill, 604 F.2d 1356, 1361, 202 USPQ 805, 808 (CCPA 1979) and In re Tiffin,
448 F.2d 791, 792, 171 USPQ 294, 294 (CCPA 1971). See also In re Grasselli, 713 F.2d 731,
743, 218 USPQ 769, 778 (Fed. Cir. 1983). The Flisram declarations fall far short of this
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