Appeal 2007-2516
Application 10/302,553
ARDS. The discovery of an optimum value of a results-effective variable in
a known process is normally obvious. In re Antonie, 559 F.2d 618, 620, 195
USPQ 6, 8 (CCPA 1977); In re Aller, 42 CCPA 824, 220 F.2d 454, 105
USPQ 233 (1955).
Appellants contend that “[u]sing the claimed particles to decrease an
oxygen index of a patient by at least 20%, is both new and unexpected”
(Amended Br. 13). “[W]hen unexpected results are used as evidence of
nonobviousness, the results must be shown to be unexpected compared with
the closest prior art.” In re Baxter Travenol Labs., 952 F.2d 388, 392, 21
USPQ2d 1281, 1285 (Fed. Cir. 1991). Appellants have not presented any
comparative evidence to establish that the claimed invention in comparison
to the prior art achieved unexpected results.
For the foregoing reasons, we affirm the rejection of claim 1. Claims
2-14 fall with claim 1 because they were not separately argued.
Claims 16-18
Claim 16 differs from claim 1 in reciting that the recited particles
comprise calcium. Hafner ‘970 teaches that its lung surfactant can also
contain calcium to set a favorable viscosity (Hafner ‘970, col. 3, ll. 45-47;
Findings of Fact 4; Answer 4). We agree with the Examiner that it would
have been obvious to include calcium with the surfactant for the reasons
taught by Hafner ‘970. Appellants do not identify a flaw in the Examiner’s
reasoning and we find none. We affirm the rejection of claim 16. Claims 17
and 18 fall with claim 16 because they were not separately argued.
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