Appeal No. 2001-2168
Application No. 09/083,307
There are also additional factors that detract from
the probative weight to be accorded to appellant’s
comparative test results. In the first place, appellant
has proffered no evidence of the success rate, particularly
the clinical success rate, of appellant’s claimed
invention. The record before us even lacks evidence of the
total number of patients who received appellant’s
treatment. In addition, if appellant’s claimed treatment
is as effective as appellant claims it to be, one would
expect that appellant’s claimed invention would have
received favorable reports by independent, unbiased
observers in medical journals or other publications. The
lack of such reports further detracts from the weight to be
accorded to appellant’s comparative test results.
In his reply brief, appellant cites In re Soni,
54 F.3d 746, 749, 34 USPQ2d 1684, (Fed. Cir. 1995).
However, In re Soni simply makes it clear that evidence of
unexpected results must be considered in evaluating the
obviousness of a claimed invention. See Richardson-Vicks
Inc. v. The Upjohn Co., 122 F.3d 1476, 1483, 44 USPQ2d
1181, 1186 (Fed. Cir. 1997). In the present case,
appellant’s comparative examples have been fully
considered.
16
Page: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Next
Last modified: November 3, 2007