Appeal No. 2005-0836 Page 11
Application No. 09/880,292
this data establishes unexpected results which rebut any case of prima facie obviousness which
may be made out by the rejections.” (Brief, p. 11).
Once a prima facie case of obviousness is established, the burden of coming forward with
evidence and argument in rebuttal is shifted to Appellants. See In re Piasecki, 745 F.2d 1468,
1472, 223 USPQ 785, 788 (Fed. Cir. 1984). “It is well established that the objective evidence of
nonobviousness must be commensurate in scope with the claims.” In re Lindner, 457 F.2d 506,
508, 173 USPQ 356, 358 (CCPA 1972). As the Examiner points out, the showing presents data
for only one nonionic surfactant, i.e., Triton X45®, an octyl phenoxy ethanol (Answer, p. 12).
The Examiner notes that nonionic surfactants are a broad group of materials that exhibit a wide
spectrum of properties. Appellants provide no convincing basis to conclude that the great
number of surfactants encompassed by the claims would exhibit the result that Appellants state
in their Brief to be unexpected. The evidence is insufficient because it is not commensurate in
scope with the claims.
Further, we note that nowhere in the specification or in the Xiao Declaration does it state
that the results are indeed unexpected. In order to establish unexpected results “it is not enough
to show that results are obtained which differ from those obtained in the prior art: that difference
must be shown to be an unexpected difference”, In re Klosak, 455 F.2d 1077, 1080, 173 USPQ
14, 16 (CCPA 1972). Of course, the mere statement in the Brief that the results are unexpected
is not enough as attorney arguments are not evidence. In re Lindner, 457 F.2d 506, 508,
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