Appeal No. 2004-1862
Application No. 09/784,041 Page 8
explanation regarding any factual showing in the specification,
that is referred to in the brief, to support a conclusion of
unexpected advantages for the reasons set forth by the examiner
in the answer.
In particular, appellant has not established that the test
results presented represent unexpected results based on the
declaration/affidavit of a qualified expert but merely assert
such by way of attorney argument in the briefs. Moreover, the
specification test results are not reasonably commensurate in
scope with the here claimed invention. We note that the
specification examples and tables relate to products made using
specific synthetic rubbers, accelerators, carbons, and other
additives, as well as using specific manufacturing steps set
forth in the specification, whereas appealed claim 2 is not so
limited. Thus, it is apparent that appellant’s evidence is
considerably more narrow in scope than the appealed claim. See
In re Dill, 604 F.2d 1356, 1361, 202 USPQ 805, 808 (CCPA 1979).
Moreover, for reasons set forth by the examiner in the
answer, we are not satisfied that the evidence of record that is
offered demonstrates results that are truly unexpected. Nor has
appellant satisfied the burden of explaining how the results
reported for those limited examples presented can be extrapolated
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