Appeal 2007-0615
Application 10/204,304
his response to the non-final Office Action mailed May 21, 2004 and the
interview of October 22, 2004. The Examiner was unpersuaded by the
Draaijer Declaration (Answer 5-6; Final Office Action 4).
A copy of the Draaijer Declaration is attached to the Brief in the
“Evidence Appendix.” Appellant contends that the Draaijer Declaration
establishes the unexpected result (i.e., evidence of nonobviousness) of dye
stabilization such that photobleaching and thermal degradation of the optical
sensor is reduced (Br. 5). Appellant also contends that Figures 2 and 4 of his
Specification show that using fluoridated silicone polymers produce
unexpected results with regard to photobleaching and thermal degradation
(Br. 5).
Like the Examiner, we find that Appellant’s evidence of
nonobviousness (i.e., unexpected results) is inadequate to rebut the
Examiner’s prima facie case. Specifically, the Draaijer Declaration does not
compare the claimed optical sensor with the closest prior art (i.e.,
Lakowicz). In re Burckel, 592 F.2d 1175, 1179-80, 201 USPQ 67, 71
(CCPA 1979). As the Examiner correctly states on page 5 of his Answer,
Lakowicz is the closest prior art in that it contains the combination of the
transition-metal complex (i.e., organometallic complex) with a silicone
substrate (Lakowicz 536). Instead of comparing his optical sensor having
fluoridated silicone polymer with Lakowicz’s optical sensor having silicone,
Appellant erroneously compares non-silicone fluoropolymers (i.e., not the
closest prior art) with the fluoridated silicone polymers of the claimed
invention (Draaijer Declaration 4-5). Accordingly, we are not persuaded by
the Draaijer Declaration.
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