Appeal No. 2001-0936
Application No. 08/952,208
The aforementioned declaration also provides data which is
relied upon by the appellants to establish that, even upon
storage, the amount of THA-I is too low to meet the claim
limitation. We have reproduced the data on the graph which
follows, focusing on THA-I formation.
0.01
0.008
0.006
THA-1
0.004
0.002
0
0 500 1000 1500 2000 2500
Hours
*The data point at zero hours is <.001. The appellants, in
their calculations of equilibrium, consider this as zero.
We do not agree with that approximation. The appellants,
when relying on declaration evidence, carry the burden of
proof. As they have not established how much less than
0.001 THA-I is present at zero hours, and in view of the
nearly linear other data points, we find that the data
supports a figure of 0.001.
The declarant has drawn, from these data points, the
conclusion that the THA-I formed during storage is “by far lower
than required in the process according to our invention.” Id.,
page 7, lines 2-3). The appellants further have provided
calculations which state that 58.8 ppm is the equilibrium
concentration of THA when t=infinity. (Paper #18, pages 2-3).
10
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