Appeal 2007-0821
Application 10/001,730
8; Pennington Decl. Item 9) whereas shorter glass fibers somewhere in the
50 to 900 micrometer range were surprisingly found to produce a product
with the desired strength and other preferred characteristics (Sutch Decl.
Item 9; Pennington Decl. Item 10).
For a number of reasons, these Declarations lack meaningful
probative value. First, they clearly are not commensurate in scope with the
breadth of the independent claims on appeal with respect to polymer
material or glass fiber length. See In re Peterson, 315 F.3d at 1320, 65
USPQ2d at 1383. Second, the Declarations contain no information relating
to whether the tested products correspond to the here claimed composition in
other respects such as the amounts of polymer material and glass fibers as
well as the presence of closed rather than open cells. Id. Third, these
Declarations present no data which shows that Appellants' claimed
composition exhibits results which are unexpected relative to the closest
prior art (i.e., Nomura). See In re Baxter Travenol Labs, 952 F.2d 388, 392,
21 USPQ2d 1281, 1285 (Fed. Cir. 1995).
Under these circumstances, it is our ultimate determination that the
record evidence as a whole weighs most heavily in favor of an obviousness
conclusion.
CONCLUSION OF LAW
For the above stated reasons, we hereby sustain the § 103 rejection of
all appealed claims as being unpatentable over Nomura in view of Crabtree.
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