Appeal 2007-0300
Application 10/101,960
Claims 1, 4, 6, 8-21, 24, 37, 38, 40, and 43-46 are rejected under
35 U.S.C. § 103(a) as being unpatentable over Khilnani and Allman in view
of Koda; claims 22, 23, 25, 26, 34-36, and 47-52 are correspondingly
rejected over these references and further in view of Poli; and claims 27-33
are correspondingly rejected over Khilnani, Allman, and Koda in view of
Okajima.
Appellants do not argue that the applied reference evidence fails to
establish a prima facie case of obviousness. Instead, it is the Appellants'
position that their claimed method is shown to be nonobvious by the two
§ 1.132 Declarations filed January 7, 2005 and May 31, 2005. In the
Appellants' view, these declarations evince that unexpectedly superior
results are obtained when refractory layers are formed by the CVD technique
of their claimed method in comparison with the coating and drying
technique of the Allman reference (Appeal Br. 5-10; Reply Br. 1-3).
For a number of reasons, the Appellants' declaration evidence of
record is inadequate to establish nonobviousness.
First of all, it is questionable whether the results shown by these
declarations are actually unexpected. Pfizer, Inc. v. Apotex, Inc., 480 F.3d
1348, 1371, 82 USPQ 1321, 1338 (Fed. Cir. 2007) (“[A]ny superior property
must be unexpected to be considered as evidence of non-obviousness”).
This is because, the January 7, 2005 Declaration inappropriately uses
different refractory materials in comparing the respective methods of the
appealed claims and of Allman. That is, the claimed method uses a silica
refractory whereas the Allman' method uses an alumina refractory
(Declaration 2-3). For this reason, it is unclear whether the superior results
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