Appeal No. 1997-4321
Application No. 08/050,693
the art to vary the Mn doping concentration as a result-
effective variable and, therefore, it would have been prima
facie obvious for one of ordinary skill in the art to utilize
a doping concentration of less than 1%. In re Boesch, 617
F.2d 272, 205 USPQ 215 (CCPA 1980).
Moreover, it is well settled that where patentability is
predicated upon a change in a condition of a prior art
composition, such as a change in concentration or the like,
the burden is on the applicant to establish with objective
evidence that the change is critical, i.e., it leads to a new,
unexpected result. In re Woodruff, 919 F.2d 1575, 1578, 16
USPQ2d 1934, 1936 (Fed. Cir. 1990); In re Aller, 220 F.2d 454,
456, 105 USPQ 233, 235 (CCPA 1955). We have not overlooked
appellants' contention that "the unexpectedly good results
(282 nm photo luminescent emission) underscore the critical
functional relationship between the dopant level (less than
1%) and the excitation frequency, a relationship not at all
appreciated by Wang" (page 12 of Brief). However, appellants
have not carried their burden on this record of establishing
that the emission results disclosed in the present
specification for the specific composition, ZnS doped with Mn,
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