Appeal No. 1997-2958 16
Application No. 08/401,719
We must look to what is shown in Tables A, B, and C to determine if there is objective
evidence showing criticality. Unexpected results must be established by factual evidence. Mere
argument or conclusory statements in the specification do not suffice. In re Soni, 54 F.3d 746, 750, 34
USPQ2d 1684, 1687 (Fed. Cir. 1995) (quoting In re De Blauwe, 736 F.2d 699, 705, 222 USPQ
191, 196 (Fed. Cir. 1984)).
In appellants’ Table C, there are no data points for direct comparison. None of the examples
in Tables A, B, and C hold the other variables constant while varying only the sodium and calcium
levels. In addition, Table C seems to indicate that many other variables effect cavitation. Many of the
lots which use alloy compositions having sodium and calcium levels within the claimed range, such as
lots 3, 4, and 10, have cavitation percentages as high or higher than lot 13, the lot having levels of
sodium and calcium outside the claimed range. Holding these other variables constant while varying the
sodium and calcium content is required in order to see how the sodium and calcium levels affect
cavitation. See In re Dunn, 349 F.2d 433, 439, 146 USPQ 479, 483 (CCPA 1965) (“While we do
not intend to slight the alleged improvements, we do not feel it an unreasonable burden on appellants to
require comparative examples relied on for non-obviousness to be truly comparative. The cause and
effect sought to be proven is lost here in the welter of unfixed variables.”).
Appellants have not provided any explanation of how the illustrated examples can be compared
to show the unexpected result. The Board is unable to find any appropriate comparison. Appellants
must explain how the illustrated examples are considered to be commensurate in scope with the
Page: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Next
Last modified: November 3, 2007