Appeal 2007-2235
Application 10/138,617
or conclusory statements in the specification does not suffice.’” In re
Geisler, 116 F.3d 1465, 1470, 43 USPQ2d 1362, 1365 (Fed. Cir. 1997)
(quoting In re De Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir.
1984)). Moreover, “when unexpected results are used as evidence of
nonobviousness, the results must be shown to be unexpected compared with
the closest prior art.” In re Baxter-Travenol Labs., 952 F.2d 388, 392, 21
USPQ2d 1281, 1285 (Fed. Cir. 1991). Also, “the objective evidence of
nonobviousness must be commensurate in scope with the claims.” In re
Lindner, 457 F.2d 506, 508, 173 USPQ 356, 358 (CCPA 1972).
In the instant case Appellant does not point to, and we do not see, any
factual evidence supporting the assertions of unexpected results. Nor does
Appellant provide any comparison between the claimed method and prior art
methods, such that the asserted advantages can be evaluated. Finally,
because claim 1 is not limited to the use of preexisting landfills, nor does it
recite a specific gas retention time, claim 1 is not commensurate in scope
with any of the advantages asserted by Appellant.
To summarize, we agree with the Examiner that one of ordinary skill
in the art viewing Hudgins, Kneer, and Apel would have considered it
obvious to reduce the nitrogen oxides in contaminated gases to nitrogen by
injecting the contaminated gases into a landfill of at least 1000 tons, and
maintaining the contaminated gases in the landfill until the nitrogen oxides
are reduced. We therefore affirm the Examiner’s obviousness rejection of
claim 1.
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