Appeal No. 2000-2149 11
Application No. 08/859,901
examples has an average optical density of at least 1.35. Having reviewed the data present,
we conclude that appellants have not met their burden of showing unexpected results. In re
Klosak, 455 F.2d 1077, 1080, 173 USPQ 14, 16 (CCPA 1972). It is not sufficient to
assert that the results obtained are unusual or unexpected. The burden of showing
unexpected results rests on those who assert them. We find that no explanation has been
proffered by the appellants. We find neither an adequate explanation in the Reply Brief as
to the meaning of the data presented, nor an explanation as to how the data presented
reasonably leads one of ordinary skill in the art to a conclusion that rebuts the prima facie
case of obviousness established by the examiner.
Each of the examples presented by the appellants are inventive examples. Most of
the examples are directed to combinations of low molecular weight polyethylene glycol and
1,3-propanediol. In comparison, the closest prior art is a combination of 1,2-ethanediol,
the next lower homolog and low molecular weight polyethylene glycol as disclosed by
Shimizu. There is however, no comparison with the Shimizu example. Accordingly, to the
extent that appellants have presented data within the scope of their invention, the showing
of unexpected properties in the specification is ineffective and not persuasive because
appellants have not presented a comparison with the closest prior art. In re Baxter Travenol
Labs., 952 F.2d 388, 392, 21 USPQ2d 1281, 1285 (Fed. Cir. 1991); In re De Blauwe,
736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984).
In addition, we conclude that the showing in the Examples is not commensurate in
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