Appeal No. 2001-0127
Application No. 09/121,636
The relied upon evidence, however, lacks a comparison of
the claimed invention against the closest prior art, which is an
aqueous composition comprising an acrylic polymer having a Tg of
21-43°C and containing 30-60% by weight of butyl methacrylate,
20% by weight of acetoacetoxy ethyl methacrylate, and 10% by
weight of acrylic acid. In re Baxter Travenol Labs, 952 F.2d
388, 392, 21 USPQ 1281, 1285 (Fed. Cir. 1991) ("[R]esults must
be shown to be unexpected compared with the closest prior
art.").
Furthermore, the relied upon evidence is not commensurate
in scope with the claims. In re Kulling, 897 F.2d 1147, 1149,
14 USPQ2d 1056, 1058 (Fed. Cir. 1990)("'[O]bjective evidence of
nonobviousness must be commensurate in scope with the claims.'";
(quoting In re Lindner, 457 F.2d 506, 508, 173 USPQ 356, 358
(CCPA 1972)); In re Dill, 604 F.2d 1356, 1361, 202 USPQ 805, 808
(CCPA 1979) ("The evidence presented to rebut a prima facie case
of obviousness must be commensurate in scope with the claims to
which it pertains.").
In this regard, Polymers B and D are limited to those
containing 10 or 20% by weight of isobutyl methacrylate, 25 or
35% by weight of butyl methacrylate, 45% by weight of styrene,
and 10% by weight of methacrylic acid. By contrast, appealed
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