Appeal No. 95-1211
Application 07/887,904
and resist antioxidant extraction from such systems. Thus, in the absence of evidence explaining the
practical significance of such results and that the results are unexpected in view of MacLeay, we are of
the view that the evidence is indicative of obviousness rather than nonobviousness. In re Geisler, 116
F.3d 1465, 1470, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997); In re Merck, 800 F.2d 1091,
1099, 231 USPQ 375, 381 (Fed. Cir. 1986); In re Hoffmann, 556 F.2d 539, 541, 194 USPQ 126,
128 (CCPA 1977); In re Klosak, 455 F.2d 1077, 1080, 173 USPQ 14, 16 (CCPA 1972); In re
D’Ancicco, 439 F.2d 1244, 1248, 169 USPQ 303, 306 (CCPA 1971); In re Gershon, 372 F.2d
535, 537 152 USPQ 602, 604 (CCPA 1967).
The evidence directed to appealed claim 17 is another matter. This evidence involves a
comparison of specification Example 4, representing claim 17 which specifies a mixture of two specific
antioxidants, and specification Example 1, which is a mixture of prior art antioxidants one of which is
used in the mixture in specification Example 4. We find that the results demonstrate a substantial
difference in oxidation induction time (OIT) on the part of specification Example 4 over the course of
the 20 week test period, and are characterized by appellants as an unexpected seven fold difference
demonstrating a synergistic effect over the mixture of specification Example 1 (principal brief, page 3;
reply brief, page 2). We observe that the result in specification Example 4 also demonstrates a
substantial difference of about four fold as compared to specification Examples 2 and 3. We further
note that while MacLeay discloses that other antioxidants may act as synergists with the amine amic acid
hydrazides, there is no evidence of record that one of ordinary skill in the art would have reasonably
expected such a result with the antioxidant mixture of appealed claim 17. See In re Soni, 54 F.3d 746,
751, 34 USPQ2d 1684, 1688 (Fed. Cir. 1995).
Furthermore, we find that the results of the compared specification Examples do not carry
beyond the specific antioxidants employed. Indeed, the evidence based on a single amine amic acid
hydrazides, alone and in admixture, does not provide a reasonable basis on which to conclude that the
remainder of the great number of mixtures of polyolefins and the specified reaction products, with and
without other stabilizer additives such as antioxidants, as provided for by MacLeay and encompassed
by appealed claims 1 through 11 and 16, would behave in the same manner. Thus, the evidence is not
commensurate in scope with appealed claims 1 through 11 and 16. See In re Lindner, 457 F.2d 506,
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