Appeal No. 95-0015
Application No. 07/869,694
(brief, page 5). For the following reasons, these figures are
not sufficient for overcoming the prima facie case of
obviousness.
First, appellant has not established that the tests whose
results are shown in these figures provide a comparison with the
closest prior art. See In re Baxter Travenol Labs., 952 F.2d
388, 392, 21 USPQ2d 1281, 1285 (Fed. Cir. 1991); In re De Blauwe,
736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984). Appellant
has not discussed what the closest prior art is or explained why
the data relied upon provide a comparison with this art.
Second, it is not enough for appellant to show that the
results for appellant’s invention and the comparative examples
differ. The difference must be shown to be an unexpected
difference, and appellant has not done so. See In re Freeman,
474 F.2d 1318, 1324, 177 USPQ 139, 143 (CCPA 1973); In re Klosak,
455 F.2d 1077, 1080, 173 USPQ 14, 16 (CCPA 1972). Particularly,
appellant has not explained why the results in Fig. 2 for
appellant’s method of Example 5 are unexpected compared to the
similar results for the comparative method of Example 3.
Third, the evidence relied upon by appellant is not
commensurate in scope with the claims. See In re Grasselli,
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