Appeal No. 2002-2125
Application No. 09/078,914
(1) establishes unexpected properties in the claimed composition
or (2) shows that the art, in any material respect, teaches away
from the claimed invention. In re Malagari, 499 F.2d 1297, 1303,
182 USPQ 549, 553 (CCPA 1974). Declaration evidence must be
properly considered and the entire matter reweighed (see, e.g. In
re Hedges, 783 F.2d 1038, 1039, 228 USPQ 685, 688 (Fed. Cir.
1986)). Whether evidence shows unexpected results is a 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).
As regards the two examples provided by the appellants, we
see the difference emphasized by the appellants - the partially
transparent, almost translucent quality of the claimed label and
the printing thereon, versus the clear label.
However, we are unpersuaded that the contrast panels
presented are representative of the claimed process or the
appropriate prior art. First, neither example is prepared
according to the claimed process. The labels appear to be taped
on after they were printed, and the location of the labels in
exhibit B cannot be said to be in a border region. Additionally,
neither example represents the closest prior art, which would
incorporate the tinted example of Popat. Furthermore, we fail to
see much difference at all in exhibit a.
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