Appeal 2007-0615
Application 10/204,304
Additionally, we are unpersuaded by Appellant’s argument that
Figures 2 and 4 establish unexpected results because the data shown in
Figures 2 and 4 is not commensurate with the claimed invention. The
claimed invention is directed to an optical sensor having an “organometallic
complex” embedded in a “substrate” that “consists of a fluoridated silicone
polymer” (claim 1). However, Appellant fails to provide the compositions
(e.g., the organometallic complexes), and the testing and processing
conditions used to generate the data of Figures 2 and 4. Moreover with
regard to Figure 2, Appellant provides no information regarding which
fluoridated silicone polymer is used in the example. Thus, it is impossible to
determine whether the unexpected results allegedly shown by Figures 2 and
4 occur for all “fluoridated silicone polymers” as claimed. In re Kollman,
595 F.2d 48, 55, 201 USPQ 193, 198 (CCPA 1979) (explaining that showing
unexpected results in one species encompassed by a generic claim does not
provide adequate basis for concluding that a great number of compositions
also encompassed by the generic claim would behave the same way).
In fact, the data shown in Figure 4 indicates disparities between the
various fluoridated polymers such that it is unlikely that the unexpected
results occur for all fluoridated silicone polymers as claimed. Appellant’s
Figure 4 demonstrates the thermal degradation resistance of two fluoridated
silicone polymers as they compare to conventional silicone. Embodiment
“(a)” represents the thermal degradation of conventional silicone polymer,
embodiment “(b)” represents the thermal degradation of Elastosil®, the
preferred fluoridated silicone polymer, and embodiment “(c)” represents the
thermal degradation of “a substrate according to the invention [i.e, a
fluoridated silicone polymer] (a mixture of PS184.5 and PS9120 of the firm
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