Appeal 2007-0300
Application 10/101,960
displayed by the claimed method were due to the use of a different
deposition method (i.e., CVD) or the use of a different refractory material
(i.e., silica).
In this regard, it is significant that Appellants' claim 1 method recites
"refractory coating" generally and thus is not limited to silica specifically.
In fact, dependent claim 11 clearly reveals that independent claim 1 includes
numerous refractory materials including the alumina material used by
Allman. Under these circumstances, it is apparent that the declaration
comparison could have and should have used the same alumina refractory
for both the claim 1 method and the Allman method. Only in this way
would a comparison reveal that any differing results are due to the differing
application techniques rather than differing refractory materials.
The declaration evidence is also deficient because results are shown
only for the claim 1 method wherein silica is used as the refractory material.
As explained above, claim 1 encompasses the use of numerous refractory
materials in addition to silica. As a consequence, even if the Declarations
were assumed to show unexpected results, the showing would be inadequate
to overcome the Examiner's prima facie case of obviousness because it is
not commensurate in scope with the claimed range. See In re Peterson,
315 F.3d 1325, 1329, 65 USPQ2d 1379, 1383 (Fed. Cir. 2003) and In re
Grasselli, 713 F.2d 731, 743, 218 USPQ 769, 778 (Fed. Cir. 1983).
Concerning these matters, Appellants state that they "do not believe,
however, that the difference in materials is in any way responsible for the
difference in results; rather, it is the difference in coating methods in the
production of the presently claimed two layer coating by CVD which results
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