Appeal No. 1997-2829
Application No. 08/456,090
constitutes an unobvious result (Brief, paragraph bridging
pages 3-4). We disagree.
Appellant’s reliance on the Rule 132 Declaration is
misplaced for these reasons:
First, the declaration is insufficient because it is not
commensurate in scope with claim 1. As set forth in section
VI-B3-b, supra, appealed claim 1 does not require the
continuous administration of baclofen beyond three days.
Objective evidence of non-obviousness must be commensurate in
scope with the claims. In re Kulling, 897 F.2d 1147, 1149, 14
USPQ2d 1056, 1058 (Fed. Cir. 1990).
Second, the evidence is insufficient because the
continuous administration of baclofen beyond three days does
not constitute an unexpected result. Appellant has not
adequately taken into account the appropriate level of skill
in this art. Contrary to appellant’s comments at page 4,
lines 2-3 of the Brief, Kreutner is not limited to
administering a single dosage of baclofen. See section VI-B2,
supra. In view of the teachings of Kreutner, a person having
ordinary skill in the art, in particular the clinician,
through routine experimentation, would have readily determined
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