Appeal No. 2003-0645 10
Application No. 09/245,625
obviousness. See In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d
1443, 1444 (Fed. Cir. 1992).
We agree with the examiner (Answer, page 5) that the evidence
submitted by appellants (Example 1 and Comparative Example 1) is
not commensurate in scope with the subject matter claimed. See In
re Boesch, 617 F.2d 272, 276, 205 USPQ 215, 219 (CCPA 1980). It is
incumbent upon the appellants to show that the evidence submitted
as showing “unexpected results” is commensurate with or predictive
of results commensurate in scope with the claimed subject matter.
Appellants state that Example 1 shows a spandex fiber takes up 2300
ppm of fluoride (Brief, page 13; Reply Brief, page 7). However,
this statement is a generalization since this Example actually is
directed to the imbibition of sodium fluoride into a specific
weight (12.3 g) of spandex of 540 denier (see the specification,
page 13, ll. 20-33). None of the claims in Groups V and VI are
limited to the specific fluoride used in Example 1, nor is any
claim limited to the specific fiber and denier used. We also note
that claims 14 and 19 are limited to a process in which the aqueous
solution of a fluoride salt is at a pH of greater than about 1
while Example 1 of the specification does not recite any pH values.
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