Appeal No. 1998-2836
Application No. 08/453,211
The appellants assert that they have discovered that bone
substitute material containing bone powder induces bone
formation at a rate that is at least twice the rate observed
with a bone substitute material that contains apatite but does
not contain animal bone powder. In support, the appellants
refer to pages 8, 10, 14, 15 and 21 of the specification. In
addition, the declaration under 37 CFR § 1.132 purportedly
shows that a bone substitute material containing chitosan and
bovine bone powder is more effective in promoting new bone
growth than a bone substitute material containing chitosan and
HAp. See main brief pages 13-15.
Assuming arguendo that the comparative tests contained in
the specification support the appellants’ assertions of
superior results and that those results were unexpected, we do
not find the assertions to be convincing of the patentability
of the claimed subject matter. First, the appellants have not
established that the tests provide a comparison with the
closest prior art. See In re Baxter Travenol Labs., 952 F.2d
388, 392, 21 USPQ2d 1281, 1285 (Fed. Cir. 1991); In re De
Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984).
It appears that the closest prior art is the Ito reference,
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