Appeal No. 2005-1746 Page 6
Application No. 09/963,738
USPQ 298, 302 (CCPA 1974); In re DeBlauwe, 736 F.2d 699, 705, 222 USPQ
191, 196 (Fed. Cir. 1984).
Appellant also contends that the declaration of Naosuke Maruyama
submitted under 37 CFR § 1.132 “show that the product provided by Shimuzu
has a lower flowability index as well as a longer disintegration time as compared
to the base materials provided in Examples 1 through 4 of the present
application.” Appeal Brief, page 7.
Appellant’s declaration is not deemed to be sufficient to overcome the
rejection. The declaration refers to Examples 1-4 of the specification, which all
appear to be limited to the use of a single type of low-substituted hydroxypropyl
cellulose, LH-11, and thus are not commensurate in scope with the subject
matter of claim 1, which is drawn to the use of any low-substituted hydroxypropyl
cellulose, wherein said low-substituted hydroxypropyl cellulose has a
hydroxypropyl content in the range from 5 to 16% by weight. See In re Peterson,
315 F.3d 1325, 1330, 65 USPQ2d 1379, 1383(Fed. Cir. 2003)(“the applicants’
showing of unexpected results must be commensurate in scope with the claimed
range). Finally, appellant has not explained how Comparative Example 2
represents the closest prior art, i.e., Shimizu. For example, Shimizu’s preferred
low-substituted hydroxypropyl cellulose appears to be LH-32 (hydroxypropyl
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