Appeal No. 95-4721
Application No. 08/128,332
197 USPQ 227, 229 (CCPA 1978); In re Smith, 398 F.2d 849, 852,
158 USPQ 287, 289 (CCPA 1968).
Secondly, although declarant Walquist characterizes the
comparative results as surprising and unexpected, the
declarant has not laid the requisite factual foundation upon
which to conclude that the demonstrated results are truly
unexpected in light of the Dix disclosure considered in its
entirety. In re Longi, 759 F.2d 887, 896-97, 225 USPQ 645,
651 (Fed. Cir. 1985); In re Grunwell, 609 F.2d 486, 491, 203
USPQ 1055, 1059 (CCPA 1979); In re Lindell, 385 F.2d 453, 455,
155 USPQ 521, 523 (CCPA 1967). We find it significant that
Example 1 of the declaration, in accordance with the present
invention, uses a reaction time of 11 hours, whereas the
reaction time of Comparative Run 1 of Dix is only 2 hours. We
cannot ignore this discrepancy in reaction times because Dix
expressly discloses that "[t]he reaction can be carried to any
desired degree of completion and reaction times can vary from
about 1 to about 25 hours" (column 2, lines 31-33). We note
that Run 1 of Dix has an ultimate yield of 21% for a reaction
time of 2 hours, and it seems reasonable to presume that if
the Dix reaction was conducted for the disclosed 25 hours, a
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