Appeal No. 2004-2247 Page 5
Application No. 09/835,701
prima facie case of obviousness is established and the burden shifts to Appellants to show by
objective evidence that the claimed range of viscosity is critical, generally by showing that the
claimed range achieves unexpected results relative to the prior art range. See In re Aller, 220
F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955); In re Woodruff, 919 F.2d 1575, 1578, 16
USPQ2d 1934, 1936-37 (Fed. Cir. 1990).
Appellants also argue that Wagner does not disclose a critical viscosity range (Brief, p.
8). But Wagner, like Albacarys, is directed to the same type of cleansing article as claimed.
Routine manipulation of viscosity to obtain optimal positioning of the composition on the
substrate surface would have been obvious to one of ordinary skill in the art. Therefore, we agree
with the Examiner that there is a prima facie case of obviousness in view of Wagner as well.
The burden has shifted to Appellants to show criticality of the claimed viscosity range.
Appellants rely upon data in the specification in an attempt to overcome the prima facie
case of obviousness. They argue that the data provides evidence of unexpected results (Brief, pp.
8-9). Appellants have not met their burden in showing unexpected results because the results are
not commensurate in scope with the claims. One data point at 400 cps viscosity is insufficient
for the very large range of about 100 to about 200,000 cps recited in claim 1. Nor is the data
point at 400 cps sufficient for the range of about 200 to about 5,000 cps recited in claim 4.
Moreover, only one lathering surfactant is tested while the claims encompass any and all
lathering surfactants.
With regard to claims 5 and 8 and also claim 9, Appellants invite us to give consideration
to those claims with regard to the showing of unexpected results. Appellants, however, do not
explain how the data shows an unexpected result with respect to the added limitations of those
claims. We cannot say Appellants have met their burden with regard to these claims.
Having considered all the evidence of record, we determine that the evidence of
obviousness, on balance, outweighs the evidence of nonobviousness. Hence, we conclude that
the claimed subject matter as a whole would have been obvious to one of ordinary skill in the art.
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