Appeal No. 95-2088
Application 08/056,882
§ 103 has been established by the examiner, the burden of
going forward shifts to the appellants. In re Piasecki, 745
F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984). In
response, the appellants can submit objective evidence of
nonobviousness. Such evidence can include unexpected results,
commercial success, long-felt need in the industry, etc.
Graham v. John Deere Co., 383 U.S. 1, 17-18, 148 USPQ 459, 467
(1966).
In the case before us, the appellants urge that they
achieved unexpectedly superior results when a composition
comprising fenvalerate and MGK-264 is added to soil containing
live termites. Brief, pp. 6-7. The appellants rely on Table
1 in the specification to support their position. We find
this argument unpersuasive for several reasons.
First, we point out that representative claim 6 does not
require any specific mortality rate for termites in the
treated
soil. Rather, the claim only requires the application of an
“effective amount” of a composition comprising fenvalerate and
MGK-264. The applied prior art demonstrates that “effective”
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