Appeal No. 2003-1911
Application No. 09/228,694
These ultimate determinations by the examiner are well
taken. For example, see In re Merchant, 575 F.2d 865, 868-69,
197 USPQ 785, 787-88 (CCPA 1978) and In re Dill, 604 F.2d 1356,
1361, 202 USPQ 805, 808 (CCPA 1979). The examiner’s fundamental
position on this matter is reinforced by the fact that neither
the Brief nor the declaration contains any explanation at all as
to why the comparative polymer tested in the declaration showing
is thought to be as close or closer than the prior art polymers
specifically disclosed in the applied references. Likewise,
neither the Brief nor the declaration contains any explanation at
all as to why the three polymers tested in the declaration are
thought to be commensurate in scope with the appellants’ claimed
subject matter. In addition to the foregoing, it is important to
stress that the declaration contains no discussion at all of the
test results or even an unembellished characterization of these
results as being unexpected.
For the reasons set forth above and in the Answer, we
determine that the evidence in the appeal record before us, on
balance, clearly weighs most heavily in favor of an obviousness
conclusion. Therefore, we also sustain each of the examiner’s
Section 103 rejections advanced on this appeal.
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