Appeal No. 2006-0900
Application No. 10/368,915
does not define the claimed purification process in any way that
distinguishes it over liquid chromatography.
Appellants rely upon the Rule 1.132 Declaration of
Melvin Cabey as evidence of unexpected results. However, we
concur with the examiner that the declaration evidence does not
establish unexpected results insofar as it does not present a
comparison to the closest prior art, is not commensurate in
scope with the degree of protection sought by the appealed
claims, and does not establish that the reported results are
truly unexpected. Indeed, the Declaration fails to provide any
comparison with a prior art process, let alone the process of
Neumann. It is not sufficient for appellants to simply argue
that “[s]ince Neumann doesn’t purify anything, any degree of
purification shown would demonstrate new and unexpected results
compared to Neumann” (page 7 of Brief, fourth paragraph).
Moreover, a liquid that passes through a liquid chromatography
process necessarily is purified to some extent. Also, the
Declaration is not commensurate in scope with the appealed
claims since the data given appears to be limited to metal
removal. Also, the examiner makes a salient point that
appellants’ Attachment F seems to indicate that the claimed
invention encompasses chromatographic processes.
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