Appeal No. 2004-1092 Page 9
Application No. 10/014,425
results reported have not been established as being reasonably
comparative with the closest prior art holding all variables
constant except for the novel features of the claimed invention
and whether the showing is in fact commensurate in scope with the
appealed claims which are not limited to a 2 weight percent iron
oxide content and a 50 m2/g surface area. Also, it is not clear
whether the phrase “pyrogenically produced” is indicative of the
production process as broadly recited in appealed claim 2 or
claim 3. It is apparent that appellants’ evidence is
considerably more narrow in scope than the representative
appealed claim 2. See In re Dill, 604 F.2d 1356, 1361, 202 USPQ
805, 808 (CCPA 1979). Similarly, it is not clear whether the
comparative mixed oxide is in fact made by a process which
corresponds to the process as described in Jin not withstanding
the unsupported attorney argument of record to the effect that
the comparative mixed oxide is presumably representative of a
patent family that is more relevant than the applied Jin
reference.
To the extent that appellants are asserting that the
examples furnished in the declaration establish unexpected
results for the claimed subject matter, we note that the question
as to whether unexpected advantages have been demonstrated is a
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