applicants' argument is superficially plausible in the face of
the PCT application, it falls apart when one takes into account
the fact that hCG products with mannitol have been commercially
sold. Thus, even if one accepts the proposition that the data in
the PCT application supports a finding that sucrose is better
than mannitol, it remains the fact that those skilled in the art
would have understood that commercial hCG/mannitol products
perform in an acceptable manner. We believe one skilled in the
art will not lightly reject commercial embodiments.
3. Applicants' data
The Federal Circuit has determined that board is given broad
deference in its weighing of the evidence before it. In re
Inland Steel Co., 265 F.3d 1354, 1366, 60 USPQ2d 1396, 1405-06
(Fed. Cir. 2001). Whether evidence shows unexpected results is
an question of fact and party asserting unexpected results has
the burden of proving that the results are unexpected. In re
Geisler, 116 F.3d 1465, 1469-70, 43 USPQ2d 1362, 1364-5 (Fed.
Cir. 1997). For a variety of reasons, we decline to credit much
of the technical data offered by applicants in support of non-
obviousness. Accordingly, we decline to find that applicants
have sustained their burden of establishing unexpected results.
a.
We do not know whether Compositions 1 through 4 (see
Finding 15) provide a basis for comparing hCG/sucrose v.
hCG/mannitol. The amount of sucrose and mannitol in the hCG
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