Appeal No. 96-2888
Application No. 08/222,495
carbamate alone” much less that the use of a thiocarbamate alone
fails to provide “decent anti-wear performance.” The Table I
compositions which include a thiocarbamate always also include a
zinc dialkyldithiophosphate. It follows that the Table I data
does not exhibit unexpected results in the manner argued by the
appellants.
With respect to the Nakazato Declaration, the appellants
contend that the comparative testing therein “shows that the use
of zinc 2-ethylhexylisobutyl phosphorodithioate in place of the
secondary zinc dialkyldithiophosphate of the present invention
gives inferior performance in JASO M-328-91 test” (Brief, page
12). It is significant that the appellants point to nothing (and
we find nothing independently) in the Nakazato Declaration which
characterizes the performance of the inventive composition as
unexpected. Even if this performance were unexpected, the
proffered declaration evidence of nonobviousness still would be
inadequate to outweigh the examiner’s reference evidence of
obviousness. This is because the comparative evidence of the
declaration is considerably more narrow in scope than the
independent claims on appeal in terms of, for example,
compositional ingredients and concentrations. In this regard, it
is well settled that rebuttal evidence which is considerably more
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