Appeal No. 2006-2569 Page 6
Application No. 09/485,245
We also do not find appellant’s purported showing of unexpected results
to be sufficient to rebut the prima facie case of obviousness set forth by the
examiner. Example 2 of the specification compares the percentage of self-
priming and the stability of dried hexamers versus dried nonomers. See
Specification, pages 8-9. Example 4 of the specification also compares the
properties of dried hexamers to dried nonamers.
“[W]hen unexpected results are used as evidence of nonobviousness, the
results must be shown to be unexpected compared with the closest prior art.” In
re Baxter Travenol Labs., 952 F.2d 388, 392, 21 USPQ2d 1281, 1285 (Fed. Cir.
1991), (citing In re De Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir.
1984). We find that the closest prior art is not dried nonamers, but random 6-mer
primers that have not been dried, as taught by Godiska. But as appellant
showing of unexpected results does not address the closest prior art, appellant
has not rebutted the prima facie case, and the rejection is affirmed.
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