Appeal No. 2001-1231
Application No. 08/976,371
The Swor Declaration does not contain a comparison with the
closest prior art (i.e., the carbon black of Warner). See In re
Burckel, 592 F.2d 1175, 1179, 201 USPQ 67, 71 (CCPA 1979). The
Swor Declaration has no explanation for the lack of comparison
with Warner. However, appellants, in footnote 1 on pages 6-7 of
the Brief, explain that a comparison with Warner “was impossible
since applicants understand and believe that the specific carbon
black products disclosed by the cited patents are not
commercially available and cannot be made by applicants since the
necessary starting materials are not available to applicants.”
There is no declaration by appellants attesting to these facts
nor any specific explanation why the products of Warner cannot be
made or obtained. Furthermore there is no evidence set forth by
appellants as to what attempts were made to repeat the process of
Warner or to obtain the starting materials of the Warner process.
The Swor Declaration states that the oxygen levels of the
carbon blacks of Warner are clearly different than those of the
present product, with levels of 6.5-16.5% for Warner and less
than about 2% for the present product (Declaration, page 3;
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