Appeal 2007-0824
Application 10/829,936
Appellants' evidence of nonobviousness is limited. In re Dunn, 349 F.2d
433, 439, 146 USPQ 479, 483-84 (CCPA 1965).
Appellants also offer the declaration of one of the inventors for
demonstrating the superior durability of a polishing pad comprising
component (B) in an amount within the claimed range compared to
Comparative Example 4 having 35 mass% of maleic anhydride modified
polypropylene. However, as explained by the Examiner, this comparison
suffers the same fate as Appellants' Specification data due to the presence of
unfixed variables. For instance, Comparative Example 4, comprising 35%
component (B), cannot be fairly compared to Appellants' Example 2
comprising 30 mass% component (B) because the components are not the
same polymer, i.e., comparative Example 4 comprises maleic anhydride
modified polypropylene whereas Appellants' Example 2 comprises maleic
anhydride modified styrene-butadiene-styrene block copolymer. Moreover,
we totally agree with the Examiner that the results of the declaration are
hardly unexpected inasmuch as Hasegawa's most preferred amount for
component (B) is nearly identical to the claimed range. Examples 1 and 2 of
Hasegawa comprise only 1 and 2% of component (B), respectively, and
appellants' declaration is conspicuously silent with respect to the results
being unexpected. It is fundamental that Appellants must establish that the
comparative results are not just different, but truly unexpected. In re Merck
& Co., 800 F.2d 1091, 1099, 231 USPQ 375, 381 (Fed. Cir. 1986).
Appellants contend that while Hasegawa "does most prefer this
maximum amount, no reasons are given why," and that one of ordinary skill
in the art would not known that using component (B) in the claimed amounts
affects durability. However, insofar as Appellants explicitly acknowledge
5
Page: Previous 1 2 3 4 5 6 Next
Last modified: September 9, 2013