Appeal No. 2006-1073
Application No. 10/228,815
Answer. Accordingly, this application is remanded to the
examiner for a complete analysis of the specification data relied
upon by appellants for establishing unexpected results of the
claimed subject matter. In so doing, the examiner should analyze
the specification evidence and determine if the evidence of
obviousness represented by the applied prior art, and admitted
prior art, outweighs the evidence of nonobviousness cited by
appellants. The examiner's determination should consider whether
the specification data presents a comparison with the closest
prior art, i.e., the admittedly known use of DDAB and DDAC as
biocides for preserving wood, as well as the use of a copper salt
as a biocide for wood disclosed by Canadian '564. Also, the
examiner should determine whether the specification data is
commensurate in scope with the degree of protection sought by the
appealed claims, bearing in mind that claim 1 on appeal does not
recite the presence of a copper salt. In addition, the examiner
should evaluate whether the specification data would have been
considered truly unexpected by one of ordinary skill in the art
in light of the state of the prior art.
Accordingly, the application is remanded to the examiner for
the reasons set forth above.
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