Appeal No. 2006-3155
Application 09/682,749
Appellants, the examples in the Specification and supplemental test results
submitted by declaration demonstrate that the compositions of the invention
show surprising superiority with respect to surface gloss, and maintain a
shiny, un-dulled finish when exposed to weathering conditions compared to
compositions in which a PCCD/PC blend is used in the top and/or
intermediate layer. Br. 6
We are in agreement with the Examiner that Appellants’ evidence
fails to demonstrate unexpected results as to those claims which broadly
recite a cycloaliphatic polyester because, inter alia, testing is limited to
PCCD and, therefore, is not commensurate in scope with the claims.
Answer 8. However, we find Appellants’ evidence sufficient to establish
unexpected results with respect to dependent claims 24 and 25 which are
limited to PCCD. We note, in particular, that the Examiner has failed to
explain why Appellants’ evidence is not considered persuasive with respect
to these claims given Appellants’ third declaration under 37 C.F.R. § 1.132
stating that all testing was performed using structures having the same layer
thicknesses and using the same PCCD material. See Answer 9.
Accordingly, the rejection is affirmed as to claims 5, 7, 9, 11-18 and
20-22, and reversed as to claims 24 and 25.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(vi)(effective Sept.
13, 2004).
AFFIRMED-IN-PART
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