Appeal 2007-2851
Application 10/308,702
evidence of nonobviousness, expected results are evidence of obviousness.
In re Hoffman, 556 F.2d 539, 541, 194 USPQ 126, 128 (CCPA 1977).
Appellants have not established that the Specification data would have been
truly unexpected to one of ordinary skill in the art. In re Merck and Co.,
800 F.2d 1091, 1099, 231 USPQ 375, 381 (Fed. Cir. 1986).
Also, we agree with the Examiner that the Specification comparison
does not represent a comparison with the closest prior art. In re Johnson,
747 F.2d 1456, 1461, 223 USPQ 1260, 1263-64 (Fed. Cir. 1984).
Appellants have advanced no convincing line of reasoning why the
comparative example having the particular intermediate layer is closer prior
art than the film structure of the admitted prior art and Idea which have no
intermediate layer.
We note that Appellants’ Reply Brief does not address the Examiner’s
criticism of the Specification data as not being commensurate in scope with
the rejected claims.
In conclusion, based on the foregoing and the reasons well stated by
the Examiner, the Examiner’s decision rejecting the appealed claims is
affirmed.
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