Appeal No. 2000-0459
Application 08/838,584
representative examples do not contain the same proportions of
phosphonite and phosphite compounds of claim 29, and that,
therefore, the data is not commensurate in scope with the claims.
It is necessary that in order to establish unexpected
results for a claimed invention, objective evidence of non-
obviousness must be commensurate in scope with the claims which
the evidence is offered to support. In re Clemens, 622 F.2d
1029, 1035, 206 USPQ 289, 296 (CCPA 1980); In re Greenfield,
571 F.2d 1185, 1189, 197 USPQ 227, 230 (CCPA 1978); In re
Lindner, 457 F.2d 506, 508, 173 USPQ 356, 358 (CCPA 1972); In re
Tiffin, 448 F.2d 791, 792, 171 USPQ 294, 294 (CCPA 1971).
However, on page 3 of the reply brief, appellants correctly
point out that the only proportions specified in claim 29 are the
proportions of the compounds of formulas (x), (y), and (z) of
component a). Appellants state that component a) is SANDOSTAB
P-EPQ, which is a stabilizer that comprises the compounds of
formula (x), (y), and (z). Appellant state that it is not seen
how the stated proportions on pages 7-8 of the specification are
outside of the percentage ranges specified in claim 29. We agree
for the following reasons.
Pages 7 and 8 of appellants’ specification set forth the
components of SANDOSTAB P-EPQ. Component a) of appellants’ claim
29 comprises the compounds of formula (x), (y), and (z). These
compounds are set forth on pages 7 and 8 of appellants’
specification and fall within the percentages recited therein.
The examiner has not explained how component a) of claim 29 is
not SANDOSTAB P-EPQ as defined on pages 7 and 8 of the
specification. Hence, the examiner has not shown that SANDOSTAB
P-EPQ of Example 1 is not representative of component a) of claim
2 Formulation D is representative of appellants’ invention.
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