Appeal 2007-0824
Application 10/829,936
Hasegawa establishes a substantial case of prima facie obviousness for the
claimed polishing pad.
Appellants rely upon comparative data in the Specification and
declaration as evidence of nonobviousness. However, we concur with the
Examiner that Appellants' evidence of nonobviousness does not outweigh
the evidence of obviousness represented by Hasegawa. Like the Examiner,
we find that Appellants' comparative data is not commensurate in scope with
the degree of protection sought by the appealed claims and does not
represent a comparison with the closest prior art. While Comparative
Examples 2 and 3 of the present Specification are fairly representative of
Hasegawa's Examples 1 and 2, the Examiner correctly points out that
Comparative Examples 2 and 3 have different amounts of components (A)
and (B) than Examples 1 and 2 of the present invention. For instance,
Comparative Example 2 comprises 99 % (A) and 1% (B) whereas
Appellants' Example 1 comprises 90% (A) and 10% (B). Similarly,
Comparative Example 3 comprises 98% (A) and 2% (B) whereas
Appellants' Example 2 comprises 70% (A) and 30% B). Hence, without the
amounts of the components being held constant, the effect of using
Appellants' component (B) instead of Hasegawa's (B) cannot be fairly
determined. Also, another variable introduced by Appellants' data is the
amount of component (c), i.e., beta-cyclodextrane. Comparative Example 2
comprises 30 vol. % of component (c) whereas Appellants' Example 1 has 5
vol. %. Likewise, Comparative Example (3) and Appellants' Example 2
employ 30 vol. % and 20 vol. % of component (c), respectively.
Consequently, amidst this welter of unfixed variables, the probative value of
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