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[john122]

I have a claim that recites 15.5% by weight of CO2.
The prior art discloses 14.31% by weight of CO2.

The examiner rejects the claim by stating that it would have been obvious to increase the 14.31% by weight of CO2 in the prior art to obviate the 15.5% by weight of CO2 recited in claim 1.  Additionally, the examiner cites to In re Bergstrom, In re Cofer, Ex part Stern, etc. as his basis for rejection.

How can I argue that 15.5% by weight of CO2 in the present invention is more superior than the 14.31% by weight of CO2 in the prior art?
Is there any case law out there that puts emphasis on the patentability of compounds that have different weights?

Thanks.

[Isaac]

How can I argue that 15.5% by weight of CO2 in the present invention is more superior than the 14.31% by weight of CO2 in the prior art?

That line of argument (alone) probably won't work.  In particular if the prior art shows that CO2 has a particular effect Z, it may be obvious to increase CO2 to get the desired level of Z.

To be successful you'd need to show that a PHOSITA would not increase Z.  It may be helpful to show that 15.5% provides some unexpected effect.