Appeal 2007-3396
Application 1 11008,592
demonstrates substantially improved results.52 The comparison, however,
must be with the closest prior art.53 Moreover, the comparison must be
representative of what the prior art teaches and what is now claimed.54 For
instance, an older or less related reference may be entitled to less weight as
evidence of what would have been expected as of the applicant's filing
date.55
Bayer's specification states that the result was "[s]urprisingly.. .greatly
improved" compared to the process of the European application. For the
purposes of this decision, we assume that the word "surprisingly" indicates
Bayer thought the improvement was unexpected. The specification does
not, however, substantiate the improvement with any data showing the
nature or degree of the improvement. Moreover, Bayer has not provided the
European application as evidence on appea15%o we cannot evaluate its
teachings even if we were so inclined. Thus, we cannot assess whether the
European application is newer or more relevant to what is now claimed than
the Horn patent, for example. On the present record, we have no more than
Bayer's unsupported assurance of surprising improvement, to which we can
accord little weight.
Bayer also provides three comparative examples showing foams made
with (1) no zeolite, (2) 6 wt.% zeolite in the polyol formulation, and
52 Geisler, 1 16 F.3d at 1470-7 1,43 USPQ2d at 1366.
53 Abbott Labs. v. Andrx Pharrn., Jnc., 452 F.3d 1331, 1345,79 USPQ2d
1321, 1332 (Fed. Cir. 2006).
54 In re Harris, 409 F.3d 1339, 1344, 74 USPQ2d 195 1, 1955 (Fed. Cir.
2005).
55 Geisler, 11 6 F.3d at 1470-7 1,43 USPQ2d at 1366.
56 Br. 13, Evidence Appendix.
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