Appeal 2007-3191
Application 10/482,217
The Board also correctly reasoned that the showing of
unexpected results is not commensurate in scope with the
degree of protection sought by the claimed subject matter
because the elemental composition of CMSX®-486 is at or near
the midpoint of the claimed range. While Harris's evidence may
show a slight improvement over some alloys, the record does
not show that the improved performance would result if the
weight-percentages were varied within the claimed ranges.
Even assuming that the results were unexpected, Harris needed
to show results covering the scope of the claimed range.
See also, In re Costello, 480 F.2d 894, 897, 178 USPQ 290, 292 (CCPA
1973). In addition, because Appellant’s comparison testing is limited to
Zn(H2PO4)2, the evidence does not establish that KH2PO4 or LiH2PO4
provide unexpected results compared to the other acidic phosphate salts
listed in Liao.
ORDER
The rejection of claims 1-10 under 35 U.S.C. § 103 as unpatentable
over Liao or Murakami in view of Gallagher is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(i)(iv).
AFFIRMED
clj
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