Appeal No. 1999-1418
Application No. 08/418,847
independent claims 5 and 6 as explained above, the evidence of
nonobviousness cannot be considered to outweigh the reference
evidence of obviousness. It follows that we will sustain the
examiner’s section 103 rejection based on Winter of
independent claims 5 and 6 and of claims 11-16 which depend
therefrom.
We reach a different conclusion with respect to appealed
claims 23 and 24. It is the examiner’s viewpoint that the
appellants’ showings do not evince nonobviousness with respect
to these claims because the showings do not relate to the “-
(CH ) -" species to which the examiner interprets these claims
24
as being directed. We have previously explained, however,
that the examiner’s claim interpretation is inappropriate and
that these claims as properly interpreted are directed to the
appellants’ “ethyl-ethylene” embodiment. This last mentioned
embodiment unquestionably is tested in the appellants’ showing
and has yielded results which the examiner has indicated are
unexpected. Under these circumstances, we ultimately conclude
that the appellants’ evidence of nonobviousness outweighs the
examiner’s reference evidence of obviousness with respect to
appealed claims 23 and 24 as interpreted by this panel of the
Board. It follows that we cannot sustain the examiner’s
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