Appeal No. 95-3268
Application 07/521,695
side comparisons. In comparing the evidence of the specification with the evidence
presented in Aston (I), appellants attempt to compare results where the test animals differ,
the regimens of administration differ, and where the dosages differ. We find that we agree
with the examiner's determination (Answer, pages 14-15) that appellants have provided no
relevant evidence which establishes the alleged unexpected results. It is well settled that
the burden of establishing the significance of data in the record, with respect to
unexpected results or for other purposes, rests with appellants, which burden is not carried
by mere arguments of counsel. See generally In re Geisler, 116 F.3d 1465, 1470, 43
USPQ2d 1362, 1365-66 (Fed. Cir. 1997); In re Huang, 100 F.3d 135, 140, 40 USPQ2d
1685, 1689-90 (Fed. Cir. 1996); In re Merck & Co., Inc., 800 F.2d 1091, 1099, 231 USPQ
375, 381 (Fed. Cir. 1986).
To the extent that appellants may allege criticality with regard to the number of days
of administration, the dosage amounts, percentage weight gain, number of injections, or
appellants' 56 day study, we note simply that there are no claim limitations directed to
these parameters and therefore they do not serve to distinguish the claimed subject matter
from the disclosure of the cited references.
On the record before us, we find that the examiner has established a prima facie
case of unpatentability of the claimed method. Appellants have failed to overcome the
prima facie case against patentability, either by arguments or evidence. Therefore, the
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