Appeal 2007-0504
Application 10/700,078
4.1 shows “large differences . . . in scrub resistance” for polymers made by
different processes (Br. 5-6). However, Appellants do not establish how
Table 4.1 and the data contained therein regarding Examples 1 and 2 and
Comparative Examples A, B, C, and D compare with Friel’s aqueous
coating composition. Appellants have not proffered a comparison between
Friel’s aqueous coating composition and Appellants’ claimed aqueous
coating composition. Rather, Appellants only state that “[t]he comparative
examples shown in the application are representative of the prior art
including Friel. . . . ” (Br. 7). However, Appellants do not indicate which
comparative examples (i.e., Comparative Examples A, B, C, or D), if any,
correspond to Friel’s composition for comparison with Appellants’ aqueous
coating composition exemplified in Examples 1 and 2. Accordingly, we
cannot determine from Appellants’ evidence how the claimed aqueous
coating composition compares with Friel’s aqueous coating composition.
Specifically, because Appellants fail to indicate which comparative
example corresponds to the Friel’s aqueous coating composition, Appellants
have not proven that Friel’s aqueous coating composition does not possess
the scrub resistance of Appellants’ claimed aqueous coating composition.
Best, 562 F.2d at 1255, 195 USPQ at 433. Thus, Appellants have not carried
their burden of proving that Friel’s aqueous coating composition is different
than and does not possess the same characteristic (i.e., scrub resistance) as
Appellants’ aqueous coating composition such that Friel’s aqueous coating
composition does not anticipate or, in the alternative, render obvious
Appellants’ aqueous coating composition. Id.
Furthermore, as the Examiner indicates, the data provided by
Examples 1 and 2 and Comparative Examples A, B, C, and D are not
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