Appeal No. 95-2726
Application 07/994,477
the unexpected results are “mechanism dependent;” “[i]t is 2
not simply a question of whether the person of ordinary skill
in the art would expect to obtained improved results by
analyzing the doubly charged ions as claimed herein, but
rather whether a person of ordinary skill in the art would be
[sic, would have been] motivated to perform the analysis steps
as claimed;” and “a person of ordinary skill in the art would3
have expected success at analyzing tryptic digests by mass
spectrometry, albeit not necessarily at the level of success
actually achieved by appellants;” to be diametrically opposed4
to the case law quoted above.
The examiner acknowledges on p. 3 of the Advisory Action
mailed February 2, 1994 in Paper No. 30, that the declaration
of Dr. Covey shows unexpected results. According to the
examiner, he “is aware of the advantageous results obtained
and bears no argument with the excellent results obtained.”
Id. The examiner further acknowledges that “it may not have
been predictable, trusting Drs. Aebersold and Carr, that these
2Answer, p. 12, lines 1-2.
3Answer, p. 14, lines 17-21.
4Answer, p. 15, lines 8-11.
5
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