Appeal No. 96-2945
Application No. 08/263,163
Asahi for the advantages described in the encyclopedia, e.g.,
an extension of the performance range of the copolymers,
exceptional stress-strain properties, as well as superior
thermal and oxidative stability. Appellants have advanced no
reason why one of ordinary skill in the art would have
expected that hydrogenation of Asahi's block copolymers would
render them unsuitable for emulsification.
Appellants rely upon the Southwick Declaration as
evidence of nonobviousness. The Declaration demonstrates that
the use of 4.5% maleic anhydride in forming the grafted
copolymer results in a stable dispersion whereas the use of
only 1.7% maleic anhydride results in an unstable dispersion.
However, it is well settled that the burden of demonstrating
unexpected results rests on the party asserting them, and the
evidence must show that the results are really "unexpected."
In re Merck & Co., 800 F.2d 1091, 1099, 231 USPQ 375, 381
(Fed. Cir. 1986); In re Klosak, 455 F.2d 1077, 1080, 173 USPQ
14, 16 (CCPA 1972). In the present case, appellants have not
established on this record that the results reported in the
Declaration would have been truly unexpected to one of
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