Appeal No. 1997-3684
Application No. 08/468,010
incomplete and fail to evince nonobviousness, because it cannot be determined
therefrom efficacy which would have been expected, using appellant’s experimental
design, from the individual components of the invention mixture and their
combinations.” In particular, the examiner argues (Answer, bridging sentence,
pages 5-6) that “at a minimum, without Coniophora or Poria data for …
[cyproconazole] tested by itself at 121 g/m3 and … [dimethyldidecylammonium
chloride] tested by itself at 605 g/m3, appellant’s results are meaningless.” To this,
appellant takes issue (Reply Brief, page 2):
Appellant provides herewith copies of the European Test Standards
EN 84 and 113 … followed by appellant to produce that data
[presented in the specification] (specification, page 5). Such
protocols were designed and ratified to permit an evaluation of a
practical wood protectant (EN 113) and wood preservative (EN 84)
effect (“[t]his European Standard specifies a laboratory method of test
which gives a basis for the assessment of effectiveness of a wood
preservative against wood destroying basiodiomycetes” [EN 113,
page 4, first paragraph]). Accordingly, appellant finds the Examiner’s
criticisms of the data set forth in the specification to be
inconsequential, (“[w]hen an applicant demonstrates substantially
improved results, … and states that the results are unexpected, this
should suffice to establish unexpected results in the absence of
evidence to the contrary.” In re Soni, 54 F.3d 746, [751] 34 USPQ2d
1684, 1688 (Fed. Cir. 1995)(emphasis in original).
We agree with appellant. We see no reason to question the data without
some indication either from the data or from the prior art that these types of tests
give unreliable results. See In re Kollman, 595 F.2d 48, 56, n. 8, 201 USPQ 193,
200, n.8 (CCPA 1979). Here, the specification discloses that the tests were
performed in accordance with the “European Testing Standards ES 84 (1979) and
113 (1986), as set forth in Kollman, 595 F.2d at 56, n. 8, 201 USPQ at 200, n. 7
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