Appeal No. 95-1622
Application 07/890,593
We find that declarant McCormick further states the ratios of molar equivalents of
organometallic groups to nucleophilic groups for all of the Wright Examples (¶ 24), and states the
descriptions of the “adhesion” set forth in certain of these Examples (¶ 25). Declarant Wright concludes
that “[t]hese variable [descriptive] results do not seem to correlate with metal/nucleophilic ratios . . .
[and] [i]f Wright’s compositions adhered by our mechanism the results . . . should be more consistent
in providing good adhesion” (¶ 26; emphasis ours). We find that declarant McCormick’s conclusions
are, in this instance, based on subjective rather than objective evidence.
Declarant McCormick does conclude that “example 18 of Wright is the only example that does
not use an excess of nucleophile and it was coated on polyester which would not be one or our useful
substrates” (¶ 25). The molar ratio of organometallic groups to nucleophilic groups in Wright Example
18 is stated to be “1/0.52” (¶ 24) and while not included in the list of adhesion descriptions attributed to
Wright (¶ 25), we find that Wright describes the result of irradiating the dried coating of organometallic
polymer and the polynucleophilic 1,2-bis(diphenylphosphino)-ethane on “75 µm polyester film” as
“extremely good adhesion” (col. 17, lines 4-15). We cannot agree with declarant McCormick that the
polyester substrate used in Wright Example 18 is excluded by appealed claim 2 or not disclosed in
appellants’ specification. Indeed, as we found above (see supra note 8), it appears that the “75 µm
polyester film” is “primed” with “[v]apor coated aluminum” which, of course, would provide basic
reactive sites as required by appealed claim 2 and as disclosed in appellants’ specification (page 19,
lines 3-4 and 11). We further find no reasonable basis to exclude Wright Example 18 from
consideration based on the “polyester” substrate since that same substrate is included in Wright
Examples 9, 11-14 and 17 which are stated to be represented by solution 1 in declaration Example B
(¶ 19).
It is well settled that the burden of establishing the significance of data in the record, with respect
to unexpected results or for other purposes, rests with appellants, which burden is not carried by mere
arguments of counsel or conclusionary statements by declarant. See generally In re Geisler, 116 F.3d
1465, 1470, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997); In re Huang, 100 F.3d 135, 140, 40
USPQ2d 1685, 1689-90 (Fed. Cir. 1996); In re Merck, 800 F.2d 1091, 1099, 231 USPQ 375, 381
(Fed. Cir. 1986); In re Longi, 759 F.2d 887, 897, 225 USPQ 645, 651-52 (Fed. Cir. 1985); In re
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