Appeal No. 2005-1407
Application No. 09/978,510
First, appellants’ showing of unexpected results has not
compared appellant’s claimed invention to the closest prior art.
See In re Baxter Travenol Labs., 952 F.2d 388, 392, 21 USPQ2d
1281, 1285 (Fed. Cir. 1991); In re De Blauwe, 736 F.2d 699, 705,
222 USPQ 191, 196 (Fed. Cir. 1984). Appellants rely on Figure 1
to show unexpected results, however, the closest prior art is
Barry. The properties of the fuels used in appellants’ invention
are essentially the same as the fuels disclosed in Barry and
Barry tests two of the fuels (LEDF-1 and LEDF-2) for emissions in
Cummins GBT and GM 6.5 liter engines (Table 2). Hence, the
proper comparison with the closest prior art is a comparison of
the power loss using appellants’ fuel in a common rail fuel
system compression ignition engine versus the power loss using
Barry’s fuels LEDF-1 and LEDF-2 in Cummins GBT and GM 6.5 liter
diesel engines.
Second, even if Figure 1 were considered the closest prior
art, it is not enough for appellants to overcome the prima facie
obviousiness by showing that the results from appellants’
invention are different from the results in Figure 1. Appellants
must show that the difference in the results is an unexpected
difference. See In re Freeman, 474 F.2d 1318, 1324, 177 USPQ
139, 143 (CCPA 1973); In re Klosak, 455 F.2d 1077, 1080, 173 USPQ
14, 16 (CCPA 1972). Appellants argue that one of ordinary skill
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