Appeal No. 2005-2510 Page 6
Application No. 10/122,049
unexpected results set forth in a declaration by Marc-Andre
Portier, a named co-inventor of the subject application.
Concerning this matter, the declaration provides attachments 4-6
allegedly showing that a leakage rate for fluid C, as described
in Example 2 and Table 2 of the specification, and a fluid
similar to fluid C but including 0.025 weight percent of
potassium perfluorobutane sulfonate each met Grade A and B
specifications of a Boeing test BMS 3-11L1 whereas other fluids
tested, including fluids A and B per appellants’ specification,
did not meet those specifications. Appellants urge that those
test results demonstrate unexpected performance for the claimed
invention that rebuts the examiner’s obviousness position. We
disagree.
The question as to whether unexpected advantages have been
demonstrated is a factual question. In re Johnson, 747 F.2d
1456, 1460, 223 USPQ 1260, 1263 (Fed. Cir. 1984). Thus, it is
incumbent upon appellants to supply the factual basis to rebut
1 In the event of further prosecution of this subject matter
before the examiner in this application or another continuing
application, the examiner with appellants’ help should obtain a
copy of the standards for this Boeing test and make that
information of record.
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