Appeal No. 2006-1421
Application No. 10/434,397
criticisms of this ADeclaration@ as set forth in the answer.
Concerning the examiner=s anticipation rejection over Lefebvre,
appellants seemingly rely on the Gwozdz "Declaration" to support
their assertion of an alleged compositional difference in the
claimed coated particles and the asserted non-functional Sample
B of Lefebvre.6 In this regard, appellants have not fairly
established that the Transverse Rupture Strength comparison set
forth in the Gwozdz "Declaration" is persuasive of a
compositional or structural difference between the claimed
product and that of Sample B of Lefebvre. Concerning this
matter, the examiner has correctly noted that the Gwozdz
"Declaration" discusses tests of a polymeric coated powder
according to Lefebvre, not the applied sol-gel coated powder of
Sample B of Lefebvre. The test results related in the Gwozdz
"Declaration" have not been established to be commensurate in
6 To the extent appellants are also arguing an unexpected result for the
claimed subject matter, we note that evidence of unexpected results, even if
presented, is irrelevant in overcoming a rejection under 35 U.S.C. § 102.
In re Malagari, 499 F.2d 1297, 1302, 182 USPQ 549, 553 (CCPA 1974) (holding
that an anticipation rejection "cannot be overcome by evidence of unexpected
results or teachings away in the art."). While appellants refer to the
arguments made against the anticipation rejection ("reasons provided above,"
replacement brief, page 17) in arguing the obviousness rejection, appellants
do not separately argue how the Gwozdz "Declaration" would be relevant in
overcoming the obviousness rejection.
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