Appeal No. 1997-3770
Application No. 08/451,888
Froeschmann is limited to molybdenum dithiophosphate, the limitation of “125 to 900
ppm" is not relevant to any of the rejections before us. Moreover, appellants later
interpretation of the quantitative limitation is in accord with our view. See Brief, page 16,
lines 2-6.
As a rebuttal to the prima facie case of obviousness, appellants rely on the Declaration
of Bernard Constans. See Brief, page 11. Appellants assert that the combination of
additives provides unexpectedly good protection from wear compared to combination of
other known additives. See Brief, page 13. Having reviewed the data present, we
conclude that appellants have not met their 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 a party who asserts them.
Appellants have asserted that there is a showing of criticality in the Constans
Declaration as examples containing molybdenum within the scope of the claimed subject
matter require much greater than 20,000 cycles to complete wear. See Brief, page 12.
In comparison the prior art in the absence of molybdenum compounds does not exceed
more than 8,000 cycles to complete wear. This argument, however, is not persuasive
because each of the primary references of record clearly discloses examples directed to the
addition of a molybdenum compound or complex for the express purpose of providing
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