Appeal No. 95-2088
Application 08/056,882
amounts of the claimed compounds were well known in the art at
the time the application was filed.
Second, for a showing of unexpected results to be
probative evidence of nonobviousness, the appellant must
establish (i) that there is a difference between the results
obtained for the claimed invention and those of the prior art,
and (ii) that the difference obtained is significant and would
not have been expected by a person having ordinary skill in
the art at the time the invention was made. In re Freeman,
474 F.2d 1318, 1324, 177 USPQ 139, 143 (CCPA 1973); In re
D'Ancicco, 439 F.2d 1244, 169 USPQ 303 (CCPA 1971). This the
appellants have not done.
An efficacy enhancer by definition is a compound which
enhances, or increases, the effectiveness of another compound.
Therefore, it is reasonable to conclude that those skilled in
the art would have expected that a compound known to increase
the effectiveness of termite-controlling agents, in general,
and of
fenvalerate, in particular, would result in an increased
mortality rate in termites when applied to the soil. We
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