Appeal 2007-0074
Application 10/758,381
measuring it, it was notoriously well known in the chemical engineering art
at the time of filing the present application to employ measurement of flow
rates and feedback control in a wide variety of operational systems. We note
that Appellants do not maintain that they have discovered the use of
measurement and feedback control of flow rates but, rather, they submit that
their discovery is identifying the process parameters that should be
controlled in the claimed method. However, as explained above, both
Moore and Knight provide ample evidence that the parameters identified by
Appellants, namely, the flow rates for fuel, oxidizer, powder, and coolant,
were known in the art as result-effective variables before Appellants’
discovery.
Appellants rely upon experimental comparative data in the present
Specification at paragraph [0029] as evidence of “surprising and unexpected
improvements in the performance of the sprayed coatings” (Br. 8, ¶ 4).
However, we totally agree with the Examiner that the demonstrated
improvement utilizing control of known result-effective variables would
hardly be considered unexpected by one of ordinary skill in the art when
compared to a system lacking such controls. The burden of demonstrating
unexpected results rests on the party asserting them, and Appellants have not
established on this record that the Specification results would be considered
truly unexpected by one of ordinary skill in the art. In re 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).
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