Appeal No. 1996-2015
Application No. 08/181,539
In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992). Appellants argue
unexpected results, i.e., the claimed apparatus results in a 2.5 fold decrease in the distribution range of
particles produced (brief, pages 16-19).
Having reviewed the showing in the specification, we agree with the examiner that appellants
have not met their burden of showing unexpected results. First, appellants have not compared the
claimed subject matter with the closest prior art, i.e., the gear pump mixer apparatus of Lee, or
explained why the evidence in the specification based upon a four-blade impeller proves a comparison
of their claimed invention which is closer that than Lee.
In re Baxter Travenol Labs., 952 F.2d 388, 392, 21 USPQ2d 1281, 1285 (Fed. Cir. 1991); In re
De Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984). Second, it is not enough for
appellants to show that the results for appellants' claimed invention and the comparative examples are
different. Appellants have the burden of showing that the differences are significant and unexpected. In
re Freeman, 474 F.2d 1318, 1324, 177 USPQ 139, 143 (CCPA 1973); In re D'Ancicco, 439 F.2d
1244, 1248, 169 USPQ 303, 306 (CCPA 1971). For example, a four-blade impeller mixer would
not be expected to provide the incremental mixing and, therefore, “perfect” mixing of Lee’s gear pump
mixer (col. 7, lines 33-51). Alternatively, the results may not be unexpected in view of the improved
efficiency in homogenization based upon use of centrifugal force and roughened working surfaces
suggested by China and Eppenbach ‘178, respectively.
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