Appeal No. 2004-2028
Application No. 09/423,746
The appellants appear to rely on a showing of unexpected results
to rebut the prima facie case established by the examiner. See the
Supplemental Brief, page 12. According to the appellants, examples
7 and 8 in the specification evince that the claimed invention
imparts unexpected results. Id. Our evaluation reveals that the
appellants have not carried their burden of showing unexpected
results. In re Freeman, 474 F.2d 1318, 1324, 177 USPQ 139, 143
(CCPA 1973). In this regard, we note that these examples show that
the closest prior art composition, i.e., the sodium bicarbonate
composition of Fagiolini ‘835, imparts unexpected advantages over a
composition containing sodium bicarbonate and silica. See the
specification, pages 11-13. Also, the appellants have not
demonstrated that these examples are commensurate in scope with the
claims on appeal. In re Clemens, 622 F.2d 1029, 1035, 206 USPQ 289,
296 (CCPA 1980). That is, the improvement applicable to a reactive
composition consisting essentially of sodium bicarbonate, without
additive, is not shown to be applicable to the claimed powder
reactive composition containing multifarious additives. Further,
the appellants have not demonstrated that the claimed composition is
unexpectedly better than that shown in the closest prior art,
Fagiolini ‘835. In re Baxter Travenol Labs., 952 F.2d 388, 392, 21
USPQ2d 1281, 1285 (Fed. Cir. 1991). As indicated supra, the
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