Appeal No. 2003-0500 Page 8
Application No. 09/794,362
explained how that slightly different sensitivity represents an
unexpected result given the variation in improved sensitivities
displayed in the tables for the limited examples presented. In
this regard, appellant’s position that the tests establish
unexpectedly improved results is not persuasively explained or
substantiated on this record by the conclusory statements in the
declaration.
Also, appellant has not shown that the samples prepared for
comparison using compounds 7, 12, 13, 23 and 30 of Kashi in the
declaration represent the closest prior art described in Kashi.
Indeed, it is not clear how a fair comparison can be made
considering the numerous variables involved in the specification
and declaration tests and the breadth of the representative
claim.
Hence, we are not satisfied that the evidence of record that
is offered for comparison, as discussed in the briefs,
demonstrates results that are truly unexpected and commensurate
in scope with the claims. Nor has appellant satisfied their
burden of explaining how the results reported in those limited
samples presented can be extrapolated therefrom so as to be
reasonably guaranteed as attainable through practicing the
invention as broadly claimed. It is well established that the
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