Appeal No. 2006-0623
Application No. 10/181,859
resulting from employing either oxtylated/butylated diphenylamine
or an alkylated phenyl-alpha-naphthylamine in test oil
formulations are unexpected. In re Freeman, 474 F.2d 1318, 1324,
177 USPQ 139, 143 (CCPA 1973); Klosak, 455 F.2d at 1080, 173 USPQ
at 16. The appellant has not evinced that the alleged
improvements are not within the margin of error in the tests
employed in the specification. Indeed, nowhere does the
appellant aver that the alleged improvements are unexpected by
one of ordinary skill in the art. In re Geisler, 116 F.3d 1465,
1470, 43 USPQ2d 1362, 1365 (Fed. Cir. 1997). The only allegation
of unexpected results is from the appellant’s counsel. Thus, it
cannot be said that the appellant has carried the burden of
showing that the claimed subject matter as a whole imparts
unexpected results, thereby rebutting the prima facie case
established by the examiner.
Based on the totality of record, including due consideration
of the appellant’s arguments and evidence, we determine that the
preponderance of evidence weighs most heavily in favor of
obviousness within the meaning of Section 103(a). Accordingly,
we affirm the examiner’s decision rejecting claims 11 through 14,
16, 17, 19 and 20 under 35 U.S.C. § 103 as unpatentable over the
combined disclosures of Fang and Smalheer.
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