Appeal No. 2000-1016
Application No. 08/487,629
However, we determine that the data discussed by appellants
is not a presentation of a side-by-side comparison of (1)
results using an O2/H2S molar ratio of 0.6 to 1 versus (2)
results using an O2/H2S molar ratio of 0.65 to 1, all other
factors remaining the same. Such a comparison would be
desirable to prove any criticality. In this context, we remind
appellants 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 865, 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).
Appellants’ data is not such a comparison. Furthermore, Li does
suggest that the molar ratio is a result effective variable that
one skilled in art can optimize. See column 2, lines 53-64 of
Li.
In view of the above, we determine the examiner has set
forth a prima facie case, and appellants have not successfully
rebutted the prima facie case. We note that Kohl did not need
to be discussed to address the aforementioned issues on appeal.
In view of the above, the rejection of record is affirmed.
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