Appeal No. 1998-2836
Application No. 08/453,211
before us does not establish that superior results have been
demonstrated over the closest prior art.
Second, the evidence presented in the declaration is not
commensurate in scope with the claims. See In re Grasselli,
713 F.2d 731, 743, 218 USPQ 769, 778 (Fed. Cir. 1983); In re
Clemens, 622 F.2d 1029, 1035, 206 USPQ 289, 296 (CCPA 1980).
The appellants’ claim 1 encompasses the use of any animal bone
powder, but comparative tests are presented only for bovine
bone powder. We find in the evidence of record no reasonable
basis for concluding that the great number of materials
encompassed by the appellants’ claims would behave as a class
in the same manner as the particular material tested. See In
re Lindner, 457 F.2d 506, 508, 173 USPQ 356, 358 (CCPA 1972);
In re Susi, 440 F.2d 442, 445-46, 169 USPQ 423, 426 (CCPA
1971). In addition, unlike the “superior” sample described in
the specification, claim 1 does not require both bovine powder
and HAp. For the foregoing reasons, the rebuttal evidence is
given little weight.
The appellants argue that the examiner has misconstrued
column 4, lines 38-42 of the Oonishi reference and that the
cited text does not suggest that HAp and animal bone powder
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