Appeal No. 2000-0459
Application 08/838,584
29. On these facts, we find that SANDOSTAB P-EPQ is adequately
representative of component a) of claim 29.
The examiner also states that the exemplified compositions
are not run side-by-side with the compositions of the cited prior
art and do not demonstrate unexpected results over the
compositions of the cited prior art. (answer, page 7).
We note that rebuttal evidence can be in the form of direct
or indirect comparative testing between the claimed invention and
the closest prior art. In re Merchant, 575 F.2d 865m 869, 197
USPQ 785, 788 (CCPA 1978); In re Blondel, 499 F.2d 1311, 1317,
182 USPQ 294, 298 (CCPA 1974); In re Swentzel, 42 CCPA 757, 763,
219 F.2d 216, 220, 104 USPQ 343, 346 (1955).
The data presented by appellants compares formulation B with
formulation D, wherein components a) and c) are the same in both
kind and amount, but component b) is different.3 We find that
such a comparison convincingly shows that, when combined with
components a) and c), calcium stearate is not an art recognized
equivalent of sodium stearate for appellants’ purposes, and that
sodium stearate in combination with components a) and c),
achieves unexpectly superior results. Such a comparison is
relevant to the case at hand for the following reasons.
To the extent that Caselli makes obvious appellants’ claimed
invention, i.e., Caselli indicates that calcium stearate is an
art recognized equivalent of sodium stearate, appellants’ data
successfully rebuts the prima facie case. That is, one skilled
in the art would not have expected that sodium stearate would
perform better than calcium stearate when combined with
components a) and c), in view of Caselli.
3 Formulation B contains calcium stearate for component b), whereas
formulation D contains sodium stearate for component b).
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