Appeal No. 2003-0715
Application No. 09/873,806
or Nagai. That is, none of the comparative resins (Resins 1-3)
are representative of the relied upon prior art in which the
neutralized salt form of the resin is hydrolyzed with
hydrochloric acid and subjected to steam or hot water treatment.
In re Baxter Travenol Labs, 952 F.2d 388, 392, 21 USPQ 1281,
1285 (Fed. Cir. 1991)(“[R]esults must be shown to be unexpected
compared with the closest prior art.”).
Second, the appellants have failed to identify the factual
basis for asserting that a 3-8% absolute difference in
chloroform removal efficiency would have been considered
statistically significant and unexpected by one of ordinary
skill in the art. In re D’Ancicco, 439 F.2d 1244, 1248, 169
USPQ 303, 306 (CCPA 1971)(holding that the appellants failed to
rebut a prima facie case of obviousness where the asserted
differences between the claimed foams and prior art foams were
not shown to be significant); In re Freeman, 474 F.2d 1318,
1324, 177 USPQ 139, 143 (CCPA 1973)(explaining that in order for
a showing of unexpected results to be probative evidence of
nonobviousness, an applicant must establish (1) that there
actually is a difference between the results obtained through
the claimed invention and those of the prior art and (2) that
the difference actually obtained would not have been expected by
one skilled in the art at the time of invention).
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