Proving a Difference in Properties
Garden variety chemical patent practice often includes a first action by the Examiner citing a “homolog” or other closely related structure. This is followed by the applicant submitting an affidavit or declaration under 37 CFR § 1.132 with a ream of test data comparing the two. The Examiner then allows the claims. As a garden variety approach, this is the wrong way to proceed.
KeywordsPrima Facie Comparative Showing Prima Facie Case Generic Disclosure Federal Circuit
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