Appeal No. 1997-3354 Page 11
Application No. 08/469,809
The “difference in results” must be established as being between the claimed subject matter and
the closest prior art. In re Baxter Travenol Labs., 952 F.2d 388, 392, 21 USPQ2d 1281, 1285
(Fed. Cir. 1991). Brumbaugh teaches a composition containing alkyl ethoxy carboxylates. None of
the comparative compositions contain alkyl ethoxy carboxylates. Therefore, Brumbaugh represents
closer prior art than the tested compositions.
Furthermore, Appellant does not allege that results are unexpected. In order to establish
unexpected results “it is not enough to show that results are obtained which differ from those obtained
in the prior art: that difference must be shown to be an unexpected difference,” In re Klosak, 455 F.2d
1077, 1080, 173 USPQ 14, 16 (CCPA 1972), and mere improvement in results do not always suffice
to show unexpected results (see In re Soni, 54 F.3d 746, 751, 34 USPQ2d 1684, 1688 (Fed. Cir.
1995) and In re Longi, 759 F.2d 887, 897, 225 USPQ 645, 651 (Fed. Cir. 1985)). In the present
case, not all of the results even show an improvement. We note that on page 17, for removing soil
baked at 300°F for 1.5 hours, the percent removal for OASIS 111-5 is listed as 30% while the listed
removal percent for the comparative products in the second series is 35% and 50%.
After reviewing the totality of the evidence before us, it is our conclusion that, on balance, the
evidence of nonobviousness fails to outweigh the evidence of obviousness discussed above and,
accordingly, the subject matter of claims 2, 4-6, 8, 9, 13-15, and 17-19 would have been obvious to
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