Appeal No. 1996-0442
Application No. 07/855,442
cannot establish unexpected results. See Answer, page 10. We
disagree. The rejection before us is one of obviousness, not
of anticipation. Hence appellants may rebut the examiner’s
prima facie case of obviousness by establishing the existence
of unusual and unexpected properties in the range claimed.
Moreover, it is well settled that appellants may produce
evidence tending to show superior results because of the
selection of a narrower range within a disclosed range. See
In re Reven, 390 F.2d 997, 1001, 156 USPQ 679, 681 (CCPA
1968).
Referring to pages 2 and 3 of the Aoyama Declaration, we
find the difference in the Kerr Rotation Angle in dielectric
layers of the claimed subject matter having a refractive index
of 1.70 to 2.15, as contrasted with either dielectric layers
of greater or lesser refractive index, to be unusual and
unexpected. We are particularly persuaded as the distinction
in Kerr Rotation Angles arises from comparable but closely
spaced data points at refractive indices of 2.15, 2.18 and
2.22 respectively. We find a decrease from 1.0 to 0.9 in the
Kerr Rotation Angle between a refractive index of 2.15 and 2.2
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