Appeal No. 95-5126
Application No. 08/045,675
It appears that appellants are taking the position that the
showing establishes that the claimed subject matter imparts
unexpected results.
Upon making a factual inquiry into this showing, we are
of the view that appellants have not met their burden of
establishing unexpected results. See In re Geisler, 116 F.3d
1465, 1469-70, 43 USPQ2d 1362, 1365 (Fed. Cir. 1997); In re
Klosak, 455 F.2d 1077, 1080, 173 USPQ 14, 16 (CCPA 1972).
In the first place, we observe that appellants have not
compared the claimed subject matter with the closest prior
art. See In re Baxter Travenol Labs, 952 F.2d 388, 392, 21
USPQ2d 1281, 1285 (Fed. Cir. 1991); In re De Blauwe, 736 F.2d
699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984). For the reason
indicated supra, we determine that the composition described
in the Barber reference is much closer to the claimed
composition than that compared in the specification. In the
second place, we note that the showing is not commensurate in
scope with the degree of protection sought by claim 14 on
appeal. See In re Kulling, 897 F.2d 1147, 1149, 14 USPQ2d
1056, 1058 (Fed. Cir. 1990); In re Grasselli, 713 F.2d 731,
743, 218 USPQ 769, 778 (Fed. Cir. 1983). While the showing is
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