Appeal No. 2006-1738 Page 11
Application No. 10/059,564
The declaration is insufficient to overcome the rejection. The declarant did not
state that such results were unexpected, nor did he provide any objective evidence of
what would have been the skilled worker’s expectations. The attorney argued that such
results were “unexpectedly good,” but such statements were conclusory and not
supported by evidence of a skilled worker’s expectations. In re Soni, 54 F.3d 746, 750,
34 USPQ2d 1684, 1687 (Fed. Cir. 1995). This is also troubling since Minagawa
described a compacted tablet utilized as an insect bait (e.g., Column 4, lines 51-56),
indicating that the skilled worker would have recognized it as an adequate feeding
attractant.
It has been consistently held “that the applicant must show that the particular
range is critical, generally by showing that the claimed range achieves unexpected
results relative to the prior art range.” In re Woodruff, 919 F.2d 1575, 1578, 16 USPQ2d
1934, 1936 (Fed. Cir. 1990). Appellant has provided no evidence that the claimed
densities, e.g., not less than approximately 1.033 g/cc (claim 1) or between
approximately 1.033 g/cc and 1.377 g/cc (claim 7), are critical to the invention. For
example, no comparison was made in the Forschler declaration between compacted
baits have more or less than the claimed densities. From the specification, it appears
that the magical number of “approximately 1.033 g/cc” was chosen based on the
loading capacity of a conventional bait station and an arbitrary time period in which to
extend the monitoring period. Specification, Page 5, lines 1-19. Thus, had a larger
sized station have been used, the recited lower limit density may have been claimed
differently. The density of 1.377 g/cc at the upper limit of claim 7 appears to simply be
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
Last modified: November 3, 2007