Appeal No. 2003-0941
Application No. 09/797,296
variables. In re Dunn, 349 F.2d 433, 439, 146 USPQ 479, 483
(CCPA 1965). Our explanation follows.
Beginning at the bottom of page 4 of the brief, appellants
argue that Example 11 of Traver, only 6 percent of the cyclics
were removed whereas in appellants Tables 1-3, the amount of D4
that was removed was 26 percent, 54 percent, and 38 percent,
respectively.
However, in order for such a comparison of Example 11 with
Examples 1-3 of specification to be truly comparative, variables
must be fixed. The emulsion used in example 11 of Traver is not
identical to the each emulsion used in examples 1-3 of
appellants’ specification. Also, 1 pint of emulsion was treated
in example 11 of Traver, whereas 2500 grams, 2600 grams, and
2700 grams, respectively, of emulsion, was treated in
appellants’ examples 1-3. Therefore, the cause and effect
sought to be proven here is not clearly shown.
We therefore determine that appellants’ rebuttal evidence
is insufficient to overcome the prima facie case obviousness.
We therefore affirm the rejection.
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