Appeal No. 2001-2093
Application No. 09/054,134
CFR § 1.132 (1996) of Holger Lütjens,4 filed Feb. 23, 2000 (paper
18) as well as Example 1 and comparison Example 2 of the present
specification5 as objective evidence of nonobviousness (appeal
brief, pages 7-8), we concur with the examiner (final Office
action, page 4) that the proffered evidence is insufficient to
rebut the prima facie case of obviousness.
Specifically, we note that Example 1 and comparison Example
2 are not effective to demonstrate criticality for the claimed
pH and temperature ranges because these experiments differ by
more than solely the pH values and temperatures. In particular,
477 kg of ethylene oxide are added over 2 hours and then the
mixture is stirred for 2 hours in Example 1. By contrast, 550
kg of ethylene oxide are added over 4 hours in comparison
Example 2. In re Dunn, 349 F.2d 433, 439, 146 USPQ 479, 483
(CCPA 1965)(“While we do not intend to slight the alleged
improvements, we do not feel it an unreasonable burden on
appellants to require comparative examples relied on for non-
obviousness to be truly comparative. The cause and effect
4 This declaration reports the “swelling stabilities of the
anion exchange polymers prepared according to Example 1 and
comparison Example 2” of the present application.
5 Example 1 and comparison Example 2 of the present
specification report yield, total capacity, degree of
quaternization, and content of low molecular weight polymers.
9
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