Appeal No. 1998-1276
Application No. 08/232,339
limited to only a single polymeric species that is
representative of the broad class of polymers encompassed by
appellants' elected formula, namely, poly(vinyl alcohol)
having a degree of saponification of 74.0%. Appellants have
not laid the factual foundation to support the conclusion that
the limited showing of superior results relative to the
Fujimoto polymer would be reasonably extended to the wide
variety of polymers encompassed by the presently claimed
formula. The burden of showing unexpected results rests on
appellants, and appellants have not established on this record
that the superior results of the Declaration may be reasonably
extrapolated to the class of polymers embraced by the claimed
formula. In re Kollman, 595 F.2d 48, 55, 201 USPQ 193, 198
(CCPA 1979). In addition, appellants have not satisfied their
burden of establishing that the declaration results would be
considered truly unexpected by one of ordinary skill in the
art. In re Merck & Co., 800 F.2d 1091, 1099, 231 USPQ 375,
381 (Fed. Cir. 1986); In re Klosak, 455 F.2d 1077, 1080, 173
USPQ 14, 16 (CCPA 1972).
One final point remains. In the event of further
prosecution of the subject matter at bar, the examiner should
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