Appeal No. 2005-2510 Page 9
Application No. 10/122,049
demonstrates results that are truly unexpected and commensurate
in scope with the claims.
Moreover, given the prior art teachings, it is our view that
appellants have not met the burden of establishing that the
reported results would have been truly unexpected to a person of
ordinary skill in the art on this record or otherwise established
the unobviousness of the claimed composition. See In re Klosak,
455 F.2d 1077, 1080, 173 USPQ 14, 16 (CCPA 1972).
Under the circumstances recounted above, it is our
determination that the evidence of record for and against a
conclusion of obviousness, reconsidered in light of the
respective arguments and evidence advanced by appellants and the
examiner, on balance, weighs most heavily in favor of an
obviousness conclusion with respect to the rejection under
consideration. Accordingly, we shall sustain the examiner's
§ 103(a) rejection.
CONCLUSION
The decision of the examiner to reject claim 15 under
35 U.S.C. § 103(a) as being unpatentable over Smith in view of
Kinker is affirmed.
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