Appeal No. 1997-1875
Application No. 08/451,378
appropriate to conclude that the here claimed compounds as a
class would not exhibit the improvement shown in the Zinke
declarations.
In light of the foregoing, it is clear that the
appellants' declaration evidence of nonobviousness is
considerably more narrow in scope than the appealed claims and
thus insufficient to rebut the examiner's reference evidence
of obviousness.
This declaration evidence is also deficient in another
respect. Specifically, the record before us does not support
the conclusion that the antiwear property improvement shown in
these declarations would have been unexpected by an artisan
with ordinary skill. Certainly, the declarations themselves
contain no express statements that the improved results are
unexpected. More importantly, the record contains evidence
which reflects that these improvements constitute merely
typical variations in this art and thus would have been
expected rather than unexpected. This last mentioned evidence
constitutes the variation in antiwear properties discussed
above. By way of reiteration, whether the here claimed
compounds are compared to each other or compared to the prior
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