Appeal No. 95-0192
Application No. 07/914,228
Appellants rely on the showing in the 37 CFR § 1.132
declaration of Dueber, one of the inventors of the present
application, (hereinafter referred to as “the Dueber
Declaration”) to overcome the prima facie case of obviousness
established by the examiner. The showing in the Dueber
declaration is directed to a comparison between a mixture
containing particular amounts of a particular polyisocyanate
and a particular flame retardant supposedly representative of
the prior art subject matter and a mixture containing
particular amounts of a particular polyisocyanate, a
particular flame retardant and particular polyurea particles
supposedly representative of the claimed subject matter. The
comparison is said to show that the rate of sedimentation is
“fast” for the prior art mixture but “slow” for the claimed
subject matter. This showing, according to appellants,
demonstrates that the claimed subject matter imparts
unexpected results over that of the prior art.
In assessing the sufficiency of the showing in the Dueber
declaration, we are mindful that appellants have the burden of
proof. See In re Soni, 54 F.3d 746, 750, 34 USPQ2d 1684, 1687
(Fed. Cir. 1995); In re Klosak, 455 F.2d 1077, 1080, 173 USPQ
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