Appeal 2006-1581
Application 10/2006-1581
transparency, gelation property and foamability3 are not obtained.
Appellants therefore argue that it is shown that satisfactory
transparency, gelation property and foamability cannot be obtained when at
least one of the specific viscosity of the first step polymer and the second
step polymer is lower than the claimed specific viscosity of the present
invention (Reply Br. 6-7).
Our comments of the above-mentioned rebuttal evidence is discussed
below.
Representative Examples 17-20 are shown in Table 4. The viscosity
value of the polymer at the first step is shown in the respective column, and
the values are greater than “at least 0.7”. However, we observe that the
values are not fully representative of the claimed range of “at least 0.7”.
Likewise, the values of the polymer at the second step are higher than
at least 0.5, however, the values listed therein are also not fully
representative of the claimed range of “at least 0.5”.
Although we appreciate Appellants' comparison of the results from
Experiments 17-20, as well as Comparative Example 9, Comparative
Example 10, Comparative Example 5 of Matsuba, and the example set forth
by the Experiment in the Declaration of March 2003, the data representative
of Appellants' invention is not commensurate in scope with their claimed
range. Therefore, the comparisons made are unconvincing. We note that in
order to establish unexpected results for a claimed invention, objective
evidence of non-obviousness must be commensurate in scope with the
3 We observe that the term “foamability” is stated by Appellants. Table 4
on page 26 of the Specification indicates “formability”. The first paragraph
on page 27 of the Specification indicates “foamability”.
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