Appeal 2007-3191
Application 10/482,217
motivated to select KH2PO4 as a component in Liao’s thermoplastic
composition.
Accordingly, we find that the Examiner has established a prima facie
showing of obviousness of appealed claims 1-10 based on the combined
teachings of Liao and Gallagher.
A prima facie case of obviousness may be rebutted by evidence of
unexpected results or a showing that the prior art teaches away from the
claimed invention in any material respect. In re Geisler, 116 F.3d 1465,
1469-70, 43 USPQ2d 1362, 1364 (Fed. Cir. 1997). Appellant contends that
“not all phosphorus containing compounds will produce the superior results
of the claimed composition.” (Reply 5.) Appellant relies on the comparison
testing described in the Specification as evidence of unexpected results.
(Reply 5-6). Specifically, Appellant relies on test results conducted on three
compositions containing .2 wt % KH2PO4, .1 wt% LiH2PO4, and .2 wt%
Zn(H2PO4)2, respectively, the remaining components being identical.
We do not find this evidence persuasive in overcoming the
Examiner’s prima facie showing of obviousness because the testing is not
commensurate in scope with the claims.1 For example, the evidence does
not establish unexpected results for the entire claimed range of .01 to 5 wt%
KH2PO4 or LiH2PO4. See In re Harris, 409 F.3d 1339, 1344, 74 USPQ2d
1951, 1955 (Fed. Cir. 2005) which states:
1 We note that the Examiner did not comment on the test results. However,
this argument appears to have been presented for the first time in
Appellant’s Reply Brief. See In re Klosak, 455 F.2d 1077, 1080, 173 USPQ
14, 16 (CCPA 1972) (The burden of analyzing and explaining data to
support an argument of unexpected results rests on the party asserting it).
10
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