Appeal No. 2001-2168
Application No. 09/083,307
In evaluating appellant’s evidence of nonobviousness
(namely the comparative examples set forth on pages 12-14
of appellant’s specification), we are mindful of the
necessity of reweighing the entire merits of the matter and
hence considering all of the evidence of record anew. In
re Piasecki, 745 F.2d 1468, 1474, 223 USPQ 785, 788 (Fed.
Cir. 1984).
With regard to comparative tests such as appellant’s
examples as set forth on pages 12-14 of the specification,
it is necessary to compare appellant’s claimed invention
with the closest prior art in order to rebut a prima facie
case obviousness. See In re De Blauwe, 736 F.2d 699, 705,
222 USPQ 191, 196 (Fed. Cir. 1984) and In re Merchant,
575 F.2d 865, 869, 197 USPQ 785, 788 (CCPA 1978).
In the present case, the examples set forth on pages
12-14 of appellant’s specification compare appellant’s
invention5 with conventional treatments such as radiation
therapy and chemotherapy (see, for instance, example 2 on
page 13 of the specification). However, on the record
before us, the closest prior art is the blood filtration
treatment disclosed in the applied Lentz patent, not such
5 The examples set forth on pages 12-14 of appellant’s
specification do not specify the filter cutoff. However, we
presume that it is 120,000 daltons.
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