Appeal 2006-2557
Application 10/004,978
Merck & Co., 800 F.2d 1091, 1099, 231 USPQ 375, 381 (Fed. Cir. 1986); In
re Klosak, 455 F.2d 1077, 1080, 173 USPQ 14, 16 (CCPA 1972).
Furthermore, as detailed by the Examiner at pages 10-11 of the
Answer, Appellant’s evidence is not commensurate in scope with respect to
the claimed amount of phosphoric ester, which ranges from 0.5 to 20 parts
by weight. Likewise, the evidence is not commensurate in scope with the
claimed amount of organopolysiloxane, which ranges from 0.05 to 20 parts
by weight. In addition, we must agree with the Examiner that Appellant has
not established on this record that the Specification and Declaration results
would be considered truly unexpected by one of ordinary skill in the art
inasmuch as one of ordinary skill would have reasonably expected an
increase in flame retardency upon the addition of a known flame retardant.
Merck, supra.
In conclusion, based on the foregoing and the reasons well stated by
the Examiner, it is our judgment that the evidence of obviousness produced
by the Examiner outweighs the evidence of nonobviousness advanced by
Appellant. Accordingly, the Examiner’s decision rejecting the appealed
claims is affirmed.
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