Appeal No. 1999-2633
Application 08/680,325
in this regard belie the appellant’s hindsight arguments which
rest on the individual deficiencies of each reference relative to
the subject matter claimed. Non-obviousness cannot be
established by attacking references individually where the
rejection is based upon the teachings of a combination of
references. In re Merck & Co., Inc., 800 F.2d 1091, 1097, 231
USPQ 375, 380 (Fed. Cir. 1986).
The appellant’s reliance on the comparative test data set
forth on page 5 in the instant specification to demonstrate “the
superior effects associated with the sponge puff of the present
invention” (main brief, page 8) is not well taken. To begin
with, the specification fails to describe in any meaningful way
the “conventional sponge puff” to which the inventive sponge puff
is compared. Moreover, when an article is said to achieve
unexpected (i.e., superior) results as shown by comparative
tests, the results must logically be shown as superior compared
to the closest prior art. In re Baxter Travenol Labs., 952 F.2d
388, 392, 21 USPQ2d 1281, 1285 (Fed. Cir. 1991); In re De Blauwe,
736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984). Here, the
record is devoid of any evidence that the “conventional sponge
puff” tested embodies a puff of the sort disclosed by the closest
prior art, Fujimoto.
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