Appeal No. 1997-3729 11
Application No. 08/362,107
Brief, page 6. Having reviewed the data presented, we conclude that appellants have not
met their burden of showing unexpected results. We agree with the examiner for the
reasons cited in the answer at pages 8-9. 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.
Furthermore, having reviewed the data presented, we conclude that the showing in
Tables IV on page 56 is not commensurate in scope with the degree of protection sought
by the claimed subject matter and are in agreement with the examiner’s conclusion,
Answer, pages 8 and 9 and Supplemental Answer, pages 3 and 4. See In re Grasselli, 713
F.2d 731, 743, 218 USPQ 769, 778 (Fed. Cir. 1983); In re Tiffin, 448 F.2d 791,
792, 171 USPQ 294, 294 (CCPA 1971). It is well settled that "[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.").
The evidence submitted in Table IV is limited to a single Example, D, within the
scope of the claimed subject matter. We find that Comparisons A and B contain no
antifogging additives and accordingly fail to compare the claimed subject matter with the
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