Appeal 2007-3412
Application 10/832,450
The first difficulty is that Specification Example 1 does not put us in a
position to determine whether the alleged unexpected results have been
adequately compared to the prior art. In re Baxter Travenol Labs, 952 F.2d
388, 392, 21 USPQ2d 1281, 1285 (Fed. Cir. 1991) ("when unexpected
results are used as evidence of nonobviousness, the results must be shown to
be unexpected compared with the closest prior art.") We are not informed,
for example, of any of the parameters of the PVB (e.g., the molecular weight
distribution, the degree of butyralization) or of the plasticizer (e.g., identity,
the amount used to achieve a Tg of 18°C or the amount used to achieve a Tg
of 30°C). Accordingly, we are not able to determine whether the examples
in either D'Errico reference are likely to have a Tg less than 23°C. The
amount of 33 parts per hundred plasticizer found by the Examiner in the
861 patent is well within the broad range disclosed by D'Errico's present
Specification: "the polymer sheets can comprise 10 to 90, 15 to 85, 20 to 60,
25 to 60, 20 to 80, 25 to 70, and 25 to 60 parts plasticizer per one hundred
parts of resins." (Specification at 6:13–15; FF 7.) The PA number for the
861 patent Example 2 glass layer adjacent to the IR reflective layer is 5 after
2000 hours of UV exposure, an amount said to be equivalent to two years of
Arizona sun. (861 patent at 4:46–51.) The amount of exposure and the PA
value in D'Errico 861 and 848 are strikingly similar to the presently alleged
evidence of "unexpected results" in Specification Example 1. However,
without knowing what the Tgs of the PVB layers in the 861 or 848 patents
were, we are unable to determine whether D'Errico's present results are
unexpected. Compare Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1371, 82
USPQ2d 1321, 1338 (Fed. Cir. 2007) ("in order to properly evaluate whether
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