Appeal No. 2002-0148
Application No. 09/104,675
Other than these conclusory statements, the appellants have
not favored us with any explanation in the Briefs or direct
citation of evidence in the record as to why their selected
comparative example is reflective of the teachings of Bohan or
represents a comparison with the closest prior art.
Whether evidence shows unexpected results is a question of
fact and the 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).
We have reviewed pages 49-99 of the instant specification in
hope of discerning that the comparative examples 002 and 102 are
closer than Bohan’s Sample 2, with the most preferred coupler
range. We are unable to discern where the appellants derive
support for their contention that the level of DIR components in
each layer of their comparative examples are somehow more
representative than Bohan’s preferred range.
Of note, the appellants have directed no specific argument
towards this point or pointed to any specific locations in the
record where it may be found. Accordingly, the appellants have
failed to carry their burden.
In their Reply Brief, the appellants further assert that
Example 2 of Bohan “clearly states that the masking couplers are
omitted from the sample” (Reply Brief, page 2, lines 2-3) and
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