Appeal No. 2001-2093
Application No. 09/054,134
sought to be proven is lost here in the welter of unfixed
variables.”).
Moreover, the proffered evidence is far from being
commensurate in scope with the degree of patent protection
desired. For instance, Example 1 and comparison Example 2 are
limited to the use of N,N-dimethylamino-methyl-polystyrene at a
specific amount relative to ethylene oxide. Appealed claim 5,
on the other hand, is not so limited. 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.”).
For these reasons and those set forth in the answer, we
affirm the examiner’s rejection under 35 U.S.C. § 103(a) of
appealed claims 5 through 8 and 11 through 20 as unpatentable
over DE ’715 in view of Günter.
The decision of the examiner is affirmed.
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