Appeal No. 2003-0052
Application No. 09/782,268
pages 7-13 and shows conversion results, for example via fluorine
breakthrough data, which are superior at pressures above
atmospheric pressure.
From our perspective, this nonobviousness evidence is
deficient in a number of respects. First, based on the record
before us, it is questionable whether the results shown by the
specification data are properly characterizable as unexpected.
We here emphasize that nowhere in his specification does the
appellant characterize these results as unexpected. It is only
the appellant’s attorney in the brief who describes these results
as unexpected. Under these circumstances, we view this
specification data as merely representing the optimization of the
parameter of pressure which would have been within the skill of
and thus obvious to the artisan as previously discussed.
In any event, even if the aforementioned results were
assumed to be unexpected, the evidence of nonobviousness
proffered by the appellant would be inadequate to outweigh the
examiner’s reference evidence of obviousness. In this regard, we
remind the appellant that evidence presented to rebut a prima
facie case of obviousness must be commensurate in scope with the
claims to which it pertains and that such evidence which is
considerably more narrow in scope than the claimed subject matter
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