Appeal No. 2003-0500 Page 5
Application No. 09/794,362
formula VIII or IX. Appellant argues against the examiner’s
obviousness conclusion based on an expected rough functional
equivalency of the formula VIII, IX and X compounds of Ito
principally by maintaining that their specification and a
declaration of the named inventor, Mr. Tomoyuki Koide, that is of
record, provide evidence of unexpected results for their formula
III compounds that correspond to Ito’s formula X compounds. A
copy of the declaration accompanies the briefs. Appellant
asserts that the furnished evidence overcomes any prima facie
case of obviousness (brief, pages 7-9 and reply brief) that is
made out by the examiner based on the applied references’
teaching of the interchangeableness of the formula VIII, IX and X
compounds of Ito as sensitizers in Kashi.
We do not find appellant’s evidence sufficient to outweigh
the evidence of obviousness relied upon by the examiner. In this
regard, we note that a review of representative appealed claim 1
reveals that a variety of tellurium compounds are included in the
scope of representative claim 1, including tellurium compounds as
shown at page 15, line 18 of appellant’s specification, as
amended in the amendment filed April 05, 2002. Yet, the
specification and declaration only furnish test results for
three tellurium compounds (Koide declaration, page 3) within the
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