Appeal 2007-0693
Application 10/188,519
1 F.3d 1339, 1344, 74 USPQ2d 1951, 1955 (Fed. Cir. 2005)(“The 32-43%
2 increase in stress-rupture life, however, does not represent a ‘difference in
3 kind’ that is required to show unexpected results.”)(citing In re Huang, 100
4 F.3d 135, 139, 40 USPQ2d 1685, 1688 (Fed. Cir. 1989)).
5 With respect to separately argued claim 16, Appellants rely on the
6 data presented in Table 18 (Specification 38). (Br. 15.) Table 18 reports the
7 discharge capacity at -20 degrees C and electrode strength as a function of
8 ethylene and propylene contents. According to Appellants, discharge
9 capacity “decreases rapidly when less then [sic, than] 20% of ethylene and
10 more than 80% of propylene is present in the copolymer.” However, there is
11 no comparison of the claimed invention against the closest prior art, i.e.,
12 Boer’s working example using polyethylene. In re Baxter Travenol Labs,
13 952 F.2d 388, 392, 21 USPQ 1281, 1285 (Fed. Cir. 1991) (“[R]esults must
14 be shown to be unexpected compared with the closest prior art.”).
15 Lastly, we are not persuaded that the relied upon evidence is
16 commensurate in scope with the degree of patent protection desired. In re
17 Kulling, 897 F.2d 1147, 1149, 14 USPQ2d 1056, 1058 (Fed. Cir.
18 1990)(“‘[O]bjective evidence of nonobviousness must be commensurate in
19 scope with the claims.’”)(quoting In re Lindner, 457 F.2d 506, 508, 173
20 USPQ 356, 358 (CCPA 1972)); In re Dill, 604 F.2d 1356, 1361, 202 USPQ
21 805, 808 (CCPA 1979) (“The evidence presented to rebut a prima facie case
22 of obviousness must be commensurate in scope with the claims to which it
23 pertains.”). As discussed, the burden of coming forward with unexpected
24 results is on the applicants. Appellants have not demonstrated that the
20
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