Appeal 2007-1483
Application 10/344,390
results. In re Wertheim, 541 F.2d 257, 267 191 USPQ 90, 100 (CCPA
1976); In re Woodruff, 919 F.2d 1575, 1578, 16 USPQ2d 1934, 1936 (Fed.
Cir. 1990).
The Appellants argue that wear, as evidenced by iron content in the
oil, is high when a high phosphorus lubricating oil is used in conjunction
with either a high or low sulfur fuel. However, the Appellants argue that
wear is “unexpectedly” reduced when a low phosphorus lubricating oil is
used in conjunction with a low sulfur fuel. Appeal Brief at 7-8.
Specifically, referring to Tables 9-11 of the Appellants’ Specification,
the Appellants argue that when combusting a high sulfur fuel (700 ppmw)
and lubricating with a high phosphorus lubricating oil (0.093 weight
percent), the end of test analysis indicates an iron content of 40 mg/kg.
When combusting a low sulfur fuel (9 ppmw) and lubricating with a high
phosphorus lubricating oil (0.093 weight percent), the end of test analysis
indicates an iron content of 17 mg/kg. In contrast, when combusting a low
sulfur fuel (9 ppmw) and lubricating with a low phosphorus lubricating oil
(0.046 weight percent), the end of test analysis indicates an iron content of 6
mg/kg. The Appellants argue that this result is “unexpected.” Appeal Brief
at 10.
The Appellants have failed to establish that the reduced wear said to
be achieved by the Appellants’ claimed method is “unexpected.” First, the
data contained in the Appellants’ Specification is incomplete. The
Appellants’ Specification does not report any experimental data for a test
that uses a high sulfur fuel and a low phosphorus lubricating oil. See
Appellants’ Specification 3:22-24.
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