Appeal 2007-1559
Application 10/151,746
amount of diisocyanate needed to react with all of the reactive hydroxyl
groups in the polyester" (page 7, ll. 6-10). While Appellant contends in the
Reply Brief that "unexpected results are obtained when lower ratios of
isocyanate to hydroxyl are used" (page 6, last para.), Appellant fails to point
to any specific evidence of unexpected results, let alone provide the requisite
analysis of any such results. It is well-settled that the burden of
demonstrating unexpected results rests on the party asserting them and,
manifestly, it is not within the province of this Board to ferret out such
evidence that may be in the record. In re Merck & Co., 800 F.2d 1091,
1099, 231 USPQ 375, 381 (Fed. Cir. 1986); In re Klosak, 455 F.2d 1077,
1080, 173 USPQ 14, 16 (CCPA 1972).
Appellant asserts in the Reply Brief that "[t]he Examiner's assertion
that the hydroxyl groups to isocyanate groups range of from 0.7 to 1.3 taught
by JP '247 overlaps with the Appellant's claimed hydroxyl groups to
isocyanate groups range of from 0.05 to about 0.65 for the first time in the
Examiner's Answer amounts to a new ground of rejection" (page 3, para. 3).
However, this argument is not availing to Appellant. First, the proper
recourse for an applicant perceiving a new ground of rejection is a petition to
the Director. Secondly, it is our view that the Examiner's Answer does not
constitute a new ground of rejection. The Examiner's articulation of a long-
held principal of patent jurisprudence pertaining to the term "about" is
simply responsive to Appellant's arguments. Also, Appellant has not been
denied due process on this issue since the Reply Brief presents an argument
on this point. Specifically, Appellant argues that "[b]ecause of the
unpredictability of the chemistry involved in the present application, the
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