Appeal No. 2002-2215
Application No. 08/952,475
brief, pages 3-4.) In particular, we note that the experiments
compare Test Variable #1 (equal amounts of animal fat and
vegetable oil) against Test Variable #2 (vegetable oil only) and
Test Variable #3 (animal fat only). Like the examiner (answer,
page 5), however, we find that the relied upon evidence is
insufficient to establish unexpected results over the prior art.
In this regard, we agree with the examiner’s determination that
the relied upon evidence does not compare the claimed invention
against the closest prior art composition, which includes both
animal fat and plant oil (e.g., soybean oil). (Page 103, third
column.) In re Baxter Travenol Labs, 952 F.2d 388, 392, 21 USPQ
1281, 1285 (Fed. Cir. 1991); In re De Blauwe, 736 F.2d 699, 705,
222 USPQ 191, 196 (Fed. Cir. 1984); In re Merchant, 575 F.2d 865,
869, 197 USPQ 785, 788 (CCPA 1978).
In addition, the appellants have not identified any evidence
establishing that one of ordinary skill in the art would have
considered the results shown in Table 7 to be truly unexpected.
It is not enough to show that there is a difference in results
for the claimed invention and the closest prior art; the
difference in results must be shown to be unexpected.
In re D’Ancicco, 439 F.2d 1244, 1248, 169 USPQ 303, 306 (CCPA
1971); In re Freeman, 474 F.2d 1318, 1324, 177 USPQ 139, 143
(CCPA 1973).
5
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
Last modified: November 3, 2007