Appeal No. 2005-0488
Application No. 09/851,274
e.g., polyoxyethylene lauryl ether, polyoxyethylene stearyl
ether, etc. (see column 45, lines 1-7). Indeed, all the examples
listed by Kawabe in the cited paragraph have neither a fluorine
nor a silicon-containing substituent. Accordingly, we are in
complete agreement with the examiner that it would have been
obvious for one of ordinary skill in the art to formulate a
resist material within the scope of appealed claim 1. As for
the recited amount of non-ionic surfactant of between 10 and
2000 ppm, we concur with the examiner that it would have been
obvious for one of ordinary skill in the art to resort to routine
experimentation to determine an optimum amount of non-ionic
surfactant for achieving the desired level of applicability and
developability. Moreover, it is well settled that where
patentability is predicated upon a change in a condition of a
prior art composition, such as a change in concentration or the
like, the burden is on the applicant to establish with objective
evidence that the change is critical, i.e., it leads to a new,
unexpected result. In re Woodruff, 919 F.2d 1575, 1578,
16 USPQ2d 1934, 1936 (Fed. Cir. 1990); In re Aller, 220 F.2d 454,
456, 105 USPQ 233, 235 (CCPA 1955). In the present case, as
stated by the examiner, appellants have not proffered any such
evidence which demonstrates that amounts of non-ionic surfactant
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