Appeal No. 96-3019 Application No. 08/386,136 met thier burden of showing unexpected results. In re Klosak, 455 F.2d 1077, 1080, 173 USPQ 14, 16 (CCPA 1972). It is not sufficient to assert that the results obtained are unusual or unexpected. The burden of showing unexpected results rests on they who assert them. Appellants argue that a direct comparison of a t-butyl ester with t-butyl carbonate shows that shrinkage in the case of t-butyl ester is markedly less. See Brief, page 5. This argument is not persuasive because appellants have not presented a comparison with the closest prior art. See 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). Appellants rely on the Conference Report of Leuschner to disclose that t-butyl carbonate groups and t-butyl ester groups are not equivalent. They further rely on Chatterjee, submitted with the Reply Brief, in support of their position. See Reply Brief, page 2. However, we agree with the examiner and find that the polymers exemplified by Leuschner and Chatterjee directed to t-butoxy carbonyl imide are not within the scope of the prior art references and hence do not represent the closest prior art. See Answer, 8Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 NextLast modified: November 3, 2007