Appeal No. 96-1675
Application No. 08/317,977
set forth in Table 9 are identical to the composition of DA4
except for the amount of hydroxylamine sulfate and peroxide,
that information is simply not set forth in appellant's
specification. Likewise, although it would not be illogical
for us to presume that each composition set forth in Table 9
which contains hydroxylamine sulfate has a pH of between 11
and 12 as required by the claims on appeal based on the
presence in DA4 of a buffering agent, no pH's are set forth in
Table 9 for any of the compositions. Since appellant's
broadly disclosed pH range is from 10.5 to 12 (see page 3 of
the specification, lines 5 through 7 and line 20), it is also
possible that the pH's for the compositions in Table 9 are
outside the claimed range of from 11 to 12. Nevertheless, as
we have stated above, it is appellant's burden to explain how
the data relied on as evidence of unexpected or surprising
results is representative both of the scope of the prior art
to which it is to be compared and the scope of the subject
claimed by appellant. Appellant has simply not met his burden
of persuasion.
Moreover, even assuming, arguendo, that the comparison
being suggested were not subject to different interpretations,
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