Appeal No. 2003-0645 11
Application No. 09/245,625
Appellants state that Comparative Example 1 shows that “a
conventional dental floss” takes up 385 ppm of fluoride (Brief,
page 14; Reply Brief, page 7). We agree with the examiner (Answer,
page 5) that appellants have not shown that the “conventional”
dental floss of Comparative Example 1 is a comparison with the
closest prior art, i.e., Hill. See In re Burckel, 592 F.2d 1175,
1179, 201 USPQ 67, 71 (CCPA 1979)(A showing of unexpected results
must compare the claimed subject matter with the closest prior art
to be effective). There is no evidence of record showing what
constitutes a “conventional” dental floss. The burden of
explaining the evidence of “unexpected results” rests with
appellants. See Ex parte Gelles, 22 USPQ2d 1318, 1319 (Bd. Pat.
App. & Int. 1992). Furthermore, we note that Comparative Example 1
is limited to the use of sodium fluoride and the materials and
procedure of Jøgensen et al. (specification, page 14) are not
disclosed.
Based on the totality of the record, including due
consideration of appellants’ arguments and evidence, we determine
that the preponderance of evidence weighs most heavily in favor of
obviousness. Accordingly, we affirm the examiner’s rejection of
claims 1-22 and 25-29 under 35 U.S.C. § 103(a) over Burch in
combination with Hill.
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