Appeal No. 1998-2077
Application 08/553,324
number does not appear to be reflected in the Brightness data, see Backlund, e.g., Table 1, and even if
is, there is little difference in Kappa numbers, both of which are in the range found to be acceptable in
the art. See Backlund (e.g., col. 1, lines 8-10 and 19, col. 9, lines 16-17, and Table 2, QPZ and
QPZP). The combined teachings of the references further suggest that the results obtained with respect
to these properties are influenced by a wide variety of factors such as the type of wood, the manner in
which it is oxygen-delignified and the number of stages. Also, the sequence used in Method 2 is not the
extent of the claimed sequences, which include ZQPZ and ZQPZP, which are stated in the ground of
rejection to be a modification of the known sequences QPZ and QPZP. Thus, even if the reported data
is shown to be based on a proper direct or indirect comparison of the claimed invention and a “known”
sequence, the evidence is not commensurate with the scope of the claims. See In re Kulling, 897 F.2d
1147, 1149-50, 14 USPQ2d 1056, 1058 (Fed. Cir. 1990); In re Dill, 604 F.2d 1356, 1361, 202
USPQ 805, 808-09 (CCPA 1979).
In the absence of an explanation, the single Q stage comparison in specification Example 2 does
not directly or indirectly provide a comparison between the claimed invention and the closest prior art.
Indeed, there is no explanation or evidence which provides a basis on which to extrapolate the data in
Example 2 to the performance to be expected of the particular Q stage in any of the claimed sequences
or in any of the prior art sequences. See Burckel, supra; Blondel, supra.
Accordingly, I have weighed all of the evidence of obviousness found in the combined teachings
of Backlund, Lundgren and Lindberg with all of appellants’ countervailing evidence of and argument for
nonobviousness and, therefore, I must conclude that, on the totality of the record, the claimed invention
encompassed by the appealed claims would have been obvious as a matter of law under 35 U.S.C. §
103.
CHARLES F. WARREN ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
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