Appeal No. 2002-0148
Application No. 09/104,675
That same Photographic Sample 2 of ‘470 [Bohan] was prepared
under my direction and control. I am familiar with the
formula and have evaluated the photographic properties of
Photographic Sample 2. I have found that photographic
sample 2 fails to provide a photographic material with a
gamma ratio between 0.8 and 1.2 in each of its red, green,
and blue light recording layer units. Accordingly, I
conclude that none of the disclosed samples of ‘470 has the
composition and photographic properties required of color
photographic elements as set out in each of the independent
claims of United States Patent Application 09/104,675.”
(Declaration of Szajewski, paragraph spanning pages 1-
2)(emphasis in original).
First, we note that this entire conclusion is based upon an
apparent error of fact. If the sample of Sample 2 was prepared
under the declarant’s direction and control, the declarant should
have recognized that the reference discloses Film Sample 2 has
less than 0.2 mmol/m2, not “less than 0.02” as stated in the
declaration, page 2, line 1, and explained the difference.
Second, the declaration completely misses the point of the
rejection. It is not Sample 2 which is the applied prior art; it
is Sample 2 adjusted for the most preferred range of color
coupler as disclosed in Bohan, column 11, line 3 (up to 0.01
mmol/m2).
Thus, the appellants’ evidence is not convincing because the
appellants have not provided a comparison of the claimed
invention to the closest prior art, see In re Baxter Travenol
Labs., 952 F.2d 388, 392, 21 USPQ2d 1281, 1285 (Fed. Cir. 1991);
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