Appeal No. 2007-1237
Application No. 10/813,367
rates than the viscosity of the Example 4 composition (mixture of carbon
black and carbon nanotubes). The lower viscosity of Example 4 is
important to a more facile processing of the composition into a
semiconductor shield layer. This lower viscosity is even more striking
when compared against the composition of Example 2 which contains
20 weight percent carbon nanotubes and 0 weight percent carbon black.
The viscosity of the composition of Example 2 is even greater across the
various shear rates than that of the composition of Example 1.
In addition, at page 20 [sic, 15], Table 2 of the specification, the
volume resistivities of the compositions of Examples 1-4 are reported.
The Examiner will note that not only is the volume resistivity of the
composition of Example 4 comparable to that of the composition of
Example 1, but it is much more stable over various thermal cycles than
the volume resistivity of the Example 1 composition.
(Br. 10-11).
While Appellants argue that the working examples of their specification
demonstrate synergistic properties, Appellants have failed to point to sufficient
evidence indicating that the results were considered to be unexpected to one of
ordinary skill in the art. “It is well settled that unexpected results must be
established by factual evidence. Mere argument or conclusory statements in the
specification does not suffice.” In re Soni, 54 F.3d 746, 750, 34 USPQ2d 1684,
1687 (Fed.Cir.1995) (quoting In re De Blauwe, 736 F.2d 699, 705, 222 USPQ 191,
196 (Fed.Cir.1984)). The question here, we emphasize, is a question of evidence
and the burden is on the Appellants to show unexpected results. In re Johnson,
747 F.2d 1456, 1460, 223 USPQ 1260, 1263 (Fed. Cir. 1984).
The data presented in the specification does not include a comparison of a
composition comprising carbon particles and carbon fibers as suggested by
Delphin. The results presented merely compare compositions that comprise carbon
nanotubes and carbon particles (Example 4) to compositions that only comprise
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