Appeal No. 95-1999
Application No. 08/047,381
We find the evidence presented in the declaration
sufficient to establish that Foley's preferred monomer,
hydroxy ethyl methacrylate, does not result in a composition
within the scope of appellants’ invention. We further find
that even when one uses monomers within the scope of
appellants’ invention, the preferred monomeric proportions
suggested by Foley, i.e. 30% by weight, do not result in a
composition having the requisite physical characteristics of
appellants’ invention. We also find ourselves in agreement
with appellants’ position that the results of the declaration
evidence the patentability of the claimed invention since,
"the claimed compositions possess unexpected and advantageous
properties when compared with dental materials using a
composition taught in the Foley, Jr. reference." See
appellants’ Brief, page 15, lines 12-16. After reviewing the
evidence and argument submitted by appellants together with
the argument of the examiner, based on the totality of the
record and the preponderance of the evidence, we are unable to
sustain the rejection of claims 39-44 as being unpatentable
over Foley. In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d
1443, 1444 (Fed. Cir. 1992).
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