Appeal No. 2006-1903
Application No. 10/204,306
pages 5-7, referring to Examples 1-3 and Comparative Examples 1-3
in the specification).
Appellants’ evidence is not persuasive. As correctly noted by
the examiner (Answer, page 5), appellants have not shown that the
comparative data is commensurate in scope with the subject matter
sought to be patented. In other words, the Examples are limited to
specific starting materials and process conditions while the claims
are not so limited. Furthermore, as also noted by the examiner,
appellants have not explained why the Comparison Examples “track”
the process of Grosch but are not the same as the Grosch process
(Answer, page 5, citing page 6 of the Brief). Appellants have also
not explained why the test results in Grosch show essentially the
same or better lateral breaking strength than appellants’ Examples
(Answer, page 5, citing Grosch, col. 5, ll. 48-50).
With regard to the product recited in claim 17, we note that
appellants have not established why the concentration step of claim
17 on appeal would result in a different product from the shaped
article taught by Grosch, given the similarity of the starting
materials and other process steps (Brief, page 8). See In re
Spada, supra.
Based on the totality of the record, we determine that the
examiner has established a reasonable belief that the product of
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