Appeal No. 95-1641
Application No. 07/825,927
Although the results for appellants’ examples and Yamauchi’s
examples are different, we find that appellants have not
demonstrated that the difference are unexpected. Indeed,
appellants do not aver anywhere in the specification that the
demonstrated results in the specification are unexpected. Nor
do appellants proffer any such averments through declarations
or affidavits under 37 CFR § 1.132. The only reference to
unexpected results is an argument by appellants’ counsel at
pages 9-14 of the Brief. As noted in Geisler, 116 F.3d at
1471, 43 USPQ2d at 1366, “naked attorney argument is
'insufficient to establish unexpected results.'”
We also find that appellants have not established that
the showing in the specification examples is reasonably
commensurate in scope with the degree of protection sought by
claims 1 and 8 on appeal. 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 limited to a two stage crystallization process
involving specific reaction conditions and seed particles
having specific sizes, the claims are not so limited. We find
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