Appeal 2007-1680
Application 10/081,087
1080, 173 USPQ 14, 16 (CCPA 1972)(“The burden of showing unexpected
results rests on [appellant] who asserts them.”)
However, the Appellants fail to carry their burden of showing
unexpected results. First, the chart does not give a reliable data set by which
the claimed invention can be shown to produce unexpected results. It is well
established that experimental results must be significant and practical. In re
D’Ancicco, 439 F.2d 1244, 1248, 169 USPQ 303, 306 (CCPA 1973).
However, the sample data provided does not prove to be statistically
significant. Examples 3 and 4 show that increasing the mean particle
circularity and decreasing the amount of particles with 0.85 circularity or less
actually decreased the battery capacity. This not only compromises the trend
proffered by the Appellants but also shows that the experimental results may
very well be within the margin of error attributable to the experimentation of
this type. Thus, we cannot ascertain whether the alleged unexpected results
based on the sample data are scientifically supported.
Second, the Appellants fail to compare their results with the closest
prior art. See In re Burckel, 592 F.2d 1175, 1179, 201 USPQ 67, 71 (CCPA
1979); In re DeBlauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir.
1984); In re Baxter Travenol Labs, 952 F.2d 388, 392, 21 USPQ2d 1281,
1285 (Fed. Cir. 1991). The comparative example provided is one of
independent fabrication and does not properly represent the closest prior art.
That is, comparative example 1 is not stipulated nor substantiated to be
representative of the embodiments described in Hayashi or Kato and,
therefore, it does not provide a baseline from which unexpected results can be
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