Appeal 2006-2610
Application 10/362,136
Appellants maintain that "considerable advantages are obtained from
the pulsed method of the present invention, as compared to a method with
only a single cycle" (Br. 4, third paragraph). According to Appellants,
another compression of the gas allows for initial air and impurities to be
removed from the matrix and results in "a deeper penetration and thus
provides access to a larger inner surface for the impregnation material
(Br. 5, first paragraph). However, Appellants cite no experimental,
comparative data to support their argument and have not established on this
record that any improved results of processes within the scope of the
appealed claims would have been considered truly unexpected by one of
ordinary skill in the art. In re Merck and Co., 800 F.2d 1091, 1099,
231 USPQ 375, 381 (Fed. Cir. 1986). The burden of showing unexpected
results rests on the party asserting them. In re Klosak, 455 F.2d 1077, 1080,
173 USPQ 14, 16 (CCPA 1972).
Appellants also contend that "the cited references do not relate to a
method for impregnating a carrier matrix, but rather a method for
microencapsulating a core material" (Br. 7, last paragraph). However, the
Examiner accurately points out that Shine expressly teaches that the term
"microcapsule" encompasses a dispersion of core material in a polymer
matrix, i.e., impregnation of the core material in the matrix (see col. 4,
ll. 17-20). While Appellants maintain that "impregnation and encapsulation
are two different processes with different objectives" (Br. 8, second
paragraph), the cited portion of Shine evidences that encapsulation may
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Last modified: November 3, 2007