Appeal No. 2003-0366
Application 09/349,759
products” and catalyst B exhibits a slightly lower rate of coking than catalyst C. No statement is
made with respect to the relative performance of the three catalysts regarding the “Composition
of Gas Products,” of which ethylene and propylene are specified in the appealed claims. While
appellants do note that some results reported in Table I are “higher” and others “lower” with
respect to steamed, silylated zeolite catalyst C representing appealed claim 36, there is no
statement in either the brief or the specification of the practical significance of such results and
there is no explanation or evidence bearing on whether such results would have been unexpected.
Appellants further rely on the comparisons provided in specification Examples III and IV
and the results thereof reported in specification Table II. The comparisons involve an untreated
ZSM-5 catalyst, designated “T-4480 Zeolite,” the acid-leached modification of that catalyst,
designated “Acid Leached Zeolite,” and the silylated modification of the acid leached catalyst
representing claim 15, designated “Silylated, Acid Leached Zeolite.” Appellants state that the
claimed silylated, acid leached ZSM-5 zeolite catalyst exhibited “significantly improved” weight
ratio of lower olefin to aromatic and “significantly lower” reduced coking than the other zeolite
catalysts in the brief (page 5) and in the specification (page 17). We accept appellants’
statements. However, while appellants do note that the results are “significant” with respect to
silylated, acid leached ZSM-5 zeolite catalyst representing appealed claim 15, there is no
statement in either the brief or the specification of the practical significance of such results and
there is no explanation or evidence bearing on whether such results would have been unexpected.
The examiner submits that the comparisons are “not persuasive since a catalyst as
disclosed by the closest art (Beck et al.) is not used to compared with the claimed catalyst” in
each of the Tables, as “only an untreated zeolite and one-treatment-step zeolite are used to
compare with the presently claimed” catalysts (answer, page 4).
Upon carefully considering the objective evidence relied on, we agree with the
examiner’s position because in the absence of such a showing as deemed necessary by the
examiner, the evidence does not address the thrust of the examiner’s ground of rejection. See
e.g., Baxter Travenol Labs., 952 F.2d 388, 392, 21 USPQ2d 1281, 1285 (Fed. Cir. 1991)
(“[W]hen unexpected results are used as evidence of nonobviousness, the results must be shown
to be unexpected compared with the closest prior art. [Citation omitted.]”); In re Burckel, 592
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