Appeal No. 95-1999
Application No. 08/047,381
facts. "Where the legal conclusion of obviousness is not
supported by facts it cannot stand." In re Warner, 379 F.2d
1011, 1017, 154 USPQ 173, 178 (CCPA 1967).
Even, were we to find that the teachings of Foley were
sufficient to establish a prima facie case of obviousness, and
we do not so find, the evidence set forth in the Guggenberger
Declaration would be sufficient such that the totality of the
record, by a preponderance of the evidence, would require us
to reverse the position of the examiner. The examiner has
determined that, "the [Guggenberger] 132 declaration fails to
set forth unexpected results over the prior art since it is
directed to the end product rather than the monomers or
initiators of the instant invention." See the Examiner’s
Answer, page 6. We do not agree. As we found above,
substantive consideration must be given both to the, "proviso"
and the dental limitations of claim 39. Hence, we evaluate
the evidence present in the Guggenberger Declaration.
In our evaluation of the declaration, we have given
weight only to the comparative evidence directed to 1,1-
diphenylethylene. The portions of the declaration drawn to
styrene have not been considered. That part of the
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