Appeal No. 1999-0381
Application No. 07/776,014
accounted for in the instant claims nor the appellant's
examples. It has not been demonstrated that changing any of
these parameters, inherently possessed by the instantly
claimed ingredients and the ingredients of the appellant's
examples, does not affect the unexpected result demonstrated
to occur with the very specific compositions of the appellant's
examples 9-12 (examiner’s answer, page 8).
We find this position to be in error.
In considering claim 1, we find the claim to be relatively narrow. It requires a
specific water soluble copolymer of ethylene oxide and propylene oxide and a specific
polyoxyethylene glycol that exhibits a melting point slightly above ambient temperature.
Examples 9 through 12 of the specification provide twelve specific compositions within the
narrow scope of the claim that show unexpected results (appeal brief, page 8, Table 1).
The examiner does not controvert this. In our view, the compositions in examples 9 through
12 are representative of the claimed subject matter.
The examiner has expressed concerns that appellant’s showing does not take into
account a number of parameters or factors that may affect the unexpected results
demonstrated. Assuming arguendo that these factors may have some effect, the examiner
has provided no evidence to substantiate that they are of any significance. The examiner’s
position is speculative in nature absent an explanation or evidence of record of why these
factors would be expected to affect the results to such a degree that the declaration
evidence would be of minimal value.
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