Appeal No. 2006-1002
Application No. 09/945,892
concentration, 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 emphasized by the examiner,
appellants have proffered no objective evidence which
demonstrates that the combination of antireflective, infrared
reflective and primer layers having thicknesses within the
claimed ranges produces results that would have been considered
unexpected by one of ordinary skill in the art in light of the
state of the prior art. Bare assertions of beneficial results
are no substitute for objective evidence of unexpected results.
In re Pearson, 494 F.2d 1399, 1405, 181 USPQ 641, 646 (CCPA
1974). We observe that appellants do not challenge the
examiner’s legal conclusion that “[i]t would have been obvious to
one having ordinary skill in the art at the time the invention
was made to use the glass article of Finley in a dual glass plate
arrangement with a gas-filled space, as disclosed by Zagdoun,
because this article possesses a reinforced thermal insulation
property desirable in some architectural applications” (page 5 of
answer, first paragraph).
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