Appeal No. 1998-2134
Application No. 08/585,217
228, 149 USPQ 692, 697 (CCPA 1966)(it is incumbent on
appellant
to submit clear and convincing evidence that the claimed
subject matter in fact exhibits unexpected results).
First, we note that it is not enough that the results for
appellant’s invention and a supposed closest prior art
invention are different. Appellant must demonstrate that they
are unexpectedly different. See, e.g., In re Geisler, 116
F.3d 1465, 1469-70, 43 USPQ2d 1362, 1365 (Fed. Cir. 1997);
Klosak, 455 F.2d at 1080, 173 USPQ at 16. In spite of the
examiner’s finding at pages 15 and 16 of the Answer, including
the explicit teachings of Hsieh and Wright, appellant has not
supplied any evidence to establish that the extent of the
improvement obtained in the declaration is unexpected.
Secondly, appellant has not demonstrated that the showing
in the declaration is reasonably commensurate in scope with
the protection sought by the appealed claims. While the
showing in the declaration is limited to a few photocurable
compositions containing a limited number of elastomeric block
copolymers, the claims are not so limited. Appellant’s own
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