Appeal No. 1999-0310 7
Application No. 08/225,267
F.F.F, 5F.F.F, 2-F, 3-F, 5-F and 3-OD? In their absence we cannot determine which
moieties are present on each of compounds 1 through 8. Accordingly, we conclude that
there is no appropriate side-by-side comparison between the claimed invention and the
closest prior art.
Based on our consideration of the totality of the record before us, and having
evaluated the prima facie case of obviousness in view of the appellants’ arguments and
evidence, we conclude that the preponderance of evidence weighs in favor of obviousness
of the claimed subject matter within the meaning of Section 103. See In re Oetiker, 977
F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992).
In view of the foregoing, the appellants’ Request for Reconsideration has been
granted to the extent of considering the Declaration of Plach of record, but is denied with
respect to making any changes in our prior decision.
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