Appeal 2007-2658
Application 10/451,143
Baxter Travenol Labs., 952 F.2d 388, 392, 21 USPQ2d 1281, 1285 (Fed.
Cir. 1991); In re Johnson, 747 F.2d 1456, 1461, 223 USPQ 1260, 1263-64
(Fed. Cir. 1984). We find that amorphous alloy samples 10 and 11
exemplified at Table 1 of Okamoto are closest to the claimed subject matter
since they both are copper-base amorphous alloys containing the claimed
atomic percentages of Cu, Ti, and Hf or Cu, Zr, and Hf. Compare Okamoto,
p. 14, Table 1, with Specification 10, Table 1. Yet, the Appellants have not
compared them to the claimed subject matter or adequately explained why
the Specification showing indirectly demonstrates that the claimed alloys are
unexpectedly superior to the closest copper-base amorphous alloys
exemplified in Okamoto.
We also are not persuaded that the Appellants have established that
the Specification data is reasonably commensurate in scope with the degree
of protection sought by the appealed claims. In re Grasselli, 713 F.2d 731,
743, 218 USPQ 769, 778 (Fed. Cir. 1983). While the Specification showing
is limited to those copper-base amorphous alloys having 60 atom% of Cu,
10-15 atom% of Zr, 10-15 atom% of Hf, and 10-20 atom% of Ti (Examples
12 and 13 at Table 1 of the Specification), the claims on appeal are not so
limited. The Appellants have not evinced that this limited showing can be
extended to the other materially different copper-base amorphous alloys
covered by the claims on appeal.
Accordingly, based on the factual findings set forth in the Answer and
above, we determine that that the preponderance of evidence weighs most
heavily in favor obviousness within the meaning of 35 U.S.C. § 103.
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