Appeal No. 1997-3361
Application No. 08/554,939
substrate, any silver halide emulsion, any processing condition,
any thiosulfate, a large number of possible compounds of formula
(I), and wide ranges of amounts for the thiosulfate and the
compound of formula (I). For example, as pointed out by the
examiner (examiner’s answer, page 17), the appellants have not
presented sufficient evidence that would establish unobvious
results for the entire claimed ranges of amounts for the
thiosulfate and the compound of formula (I), e.g. about 0.001
mol/liter of a thiosulfate. Under these circumstances, we
determine that appellants’ showing of unexpected results is far
from being commensurate in scope with the degree of patent
protection sought. In re Kulling, 897 F.2d 1147, 1149, 14 USPQ2d
1056, 1058 (Fed. Cir. 1990)(“[O]bjective evidence of
nonobviousness must be commensurate in scope with the claims. ”)
(quoting In re Lindner, 457 F.2d 506, 508, 173 USPQ 356, 358
(CCPA 1972); In re Dill, 604 F.2d 1356, 1361, 202 USPQ 805, 808
(CCPA 1979) (“The evidence presented to rebut a prima facie case
of obviousness must be commensurate in scope with the claims to
which it pertains.”).
For these reasons, we affirm each of the examiner’s
rejections under 35 U.S.C. § 103.
In summary, we reverse the examiner’s rejection under 35
U.S.C. § 102 of claims 1, 7, 8, and 9 as anticipated by Kojima
14
Page: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
Last modified: November 3, 2007