Appeal No. 2001-1160 Page 5
Application No. 08/479,977
228 USPQ 685, 686 (Fed. Cir. 1986) (“If a prima facie case is made in the first
instance, and if the applicant comes forward with reasonable rebuttal, whether
buttressed by experiment, prior art references, or argument, the entire merits of
the matter are to be reweighed.”).
In this case, Appellants have provided evidence that allegedly shows that
the combination of permethrin and MGK-264 has unexpectedly superior
persistence of efficacy. Appellants throughout prosecution have cited the data in
the specification as evidence of unexpected results. See Paper No. 10, filed
Dec. 13, 1996, page 7; Paper No. 13, filed July 21, 1997, page 4; Appeal Brief,
pages 7-8.
In response, the examiner has pointed to nothing in the prior art that would
have led a person of ordinary skill in the art to expect that combining permethrin
with MGK-264 would result in a combination having the persistence of efficacy
shown in the instant specification. In fact, despite Appellants’ repeated reliance
on the specification’s data, the examiner never substantively responded to their
“unexpected results” argument. See Paper No. 11, mailed Feb. 19, 1997, page
2; Paper No. 15, mailed Aug. 11, 1997; Examiner’s Answer, pages 4-5. Thus, on
this record, the examiner has not disputed Appellants’ assertion that the
specification provides evidence of unexpectedly superior results.
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