Appeal No. 2004-1032 Page 7
Application No. 09/835,510
Appellants assert unexpected properties for the claimed
alloy including a 40% reduction in Af-Mf2 and more favorable
thermomechanical properties. To the extent that appellants are
asserting that the examples furnished in the specification and
the tests reported establish unexpected results for the claimed
alloy, we note that the question as to whether unexpected
advantages have been demonstrated is a factual question. In re
Johnson, 747 F.2d 1456, 1460, 223 USPQ 1260, 1263 (Fed. Cir.
1984). Thus, it is incumbent upon appellants to supply the
factual basis to rebut the prima facie case of obviousness
established by the examiner. See, e.g., In re Klosak, 455 F.2d
1077, 1080, 173 USPQ 14, 16 (CCPA 1972).
Appellants, however, do not provide an adequate explanation
regarding any factual showing in the specification, that is
referred to in the brief, to support a conclusion of unexpected
advantages.
In particular, appellants have not furnished test results
that are reasonably commensurate in scope with the here claimed
invention. We note that representative claim 1 is not limited to
2 “[T]he difference between the temperature at which the
austenite transformation is complete minus the temperature at
which the martensite temperature is complete” (brief, page 12).
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