Appeal 2007-3396
Application 1 11008,592
(3) 4 wt.% zeolite in the polyisocyanate component.57 In all three examples,
the sum of the weight percentages for the polyol formulation exceeds ZOO%,
which immediately raises questions about the reliability of the data reported.
Assuming the data is reliable and representative of the prior art for the
purpose of this discussion, since the art teaches the use of zeolites, the
closest comparison would be between examples (2) and (3). Only one result
is reported for both examples (2) and (3): the Shore D hardness, which are
38 and 44, respectively.58 This comparison shows nearly 16% greater
hardness with less zeolite when the zeolite is added to the polyisocyanate.
This difference in degree for a single example does not by itself establish the
sort of significant difference in kind required in the case law.59
In any case, the comparison is not representative of what those in the
art would have expected. The closest prior art, Horn, suggests that the
zeolite may be added to the polyol component, the polyisocyanate
component, or both. Consequently, Bayer's examples (2) and (3) are equally
representative of what the prior art teaches. Since they are equally
representative of the prior art expectations, the comparison cannot establish
unexpected results for the claimed invention compared to the prior art.
5 7 Spec. 6:17-10:5. Although the specification says "parts by weight" for the
polyol formulation components, the appeal brief confirms that weight
percent is what is intended. Br. 9.
58 Spec. 9, table. Example (1) has a Shore D hardness of 33.
59 Harris, 409 F.3d at 1344, 74 USPQ2d at 1955 (32-43% increase not an
unexpected result); Abbott Labs., 452 F.3d at 1345, 79 USPQ2d at 1332.
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