Appeal No. 1997-0228
Application No. 08/328,534
argon saturation, an entirely expected result in view of the
teachings of FR ‘669. Moreover, the declaration evidence does
not include a comparison of the claimed invention against the
closest prior art, which is FR ‘669. De Blauwe, 736 F.2d at 705,
222 USPQ at 196 (“[A]n applicant relying on comparative tests to
rebut a prima facie case of obviousness must compare his claimed
invention to the closest prior art.”); accord In re Merchant, 575
F.2d 865, 869, 197 USPQ 785, 788 (CCPA 1978).
The appellant further contends that the declaration evidence
shows that the use of mixtures of noble gases as recited in
appealed claim 51 provides unexpected results. (Appeal brief,
page 6.) We do not agree. In analyzing the results of Table I
of the declaration, we observe that the results for the gas
mixtures (e.g., Ar:Kr 9:1 and Ar:Ne 9:1) are so close to those
for argon, which is representative of FR ‘669, that no reasonable
conclusion of unexpected results can be drawn.
For these reasons, we hold that the examiner has established
a prima facie case of obviousness within the meaning of 35 U.S.C.
§ 103 against the subject matter of the appealed claims and that
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