Appeal No. 2007-1111 Page 6
Application No. 10/126,804
aluminum flake into a container to enhance its rigidity would not also provide the
container with the property of being “substantially opaque to the transmission of
light in the range of about 400 nanometer to about 600 nanometers.”3 As
discussed above, the examiner finds (Answer, page 5) that “metal flake filler is
almost as preferable as carbon black in providing light shielding to a container.”
In our opinion, the incorporation of aluminum flake into a container to enhance its
rigidity would provide the container with the property of being “substantially
opaque to the transmission of light in the range of about 400 nanometer to about
600 nanometers.” Accordingly, we are not persuaded by appellants’ assertion to
the contrary.
Appellants also assert that their claimed invention provides unexpected
advantages not recognized in the prior art. Brief, pages 9-10. According to
appellants “containers that comprise a polymer and metallic particles dispersed
therein provide an unexpected advantage when used with certain photocurable
materials such as dental materials containing camphorquinone (‘CPQ’).” Brief,
page 9. As claim 1 is not limited to a container containing CPQ we find that
appellants’ assertion is not commensurate in scope with the claimed invention.4
In addition, appellants assert that their specification demonstrates that of the
three containers described therein only two “exhibited excellent color
3 We note that appellants’ specification fails to disclose what is intended by the term “substantially
opaque.”
4 In order to establish unexpected results for a claimed invention, objective evidence of non-
obviousness must be commensurate in scope with the claims which the evidence is offered to
support. In re Greenfield, 571 F.2d 1185, 1189, 197 USPQ 227, 230 (CCPA 1978); In re Lindner,
59 CCPA 920, 923, 457 F.2d 506, 508, 173 USPQ 356, 358 (1972); In re Tiffin, 58 CCPA 1420,
1421, 448 F.2d 791, 792, 171 USPQ 294 (1971).
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