Appeal 2007-3412 Application 10/832,450 a superior property was unexpected, the court should have considered what properties were expected.") Moreover, the 39–40 parts plasticizer in Toyama resulted in many Tgs of 5–10°C. Thus, we find that the evidence of record tends to support the Examiner's conclusion that the higher range of plasticizers taught in the D'Errico patents or by Toyama would inherently have the required Tg of 23°C or less. (Final Rejection7 at 5; Answer at 5–6.) The burden has been shifted properly to D'Errico to show that the prior art plasticized PVBs do not have a Tg of 23°C or less. D'Errico has not, however, made the required showing. Furthermore, Toyama's Comparative examples 11 and 13, which have significantly higher Tgs (Comparative example 11 has a Tg of 21°C; Comparative example 13 has a Tg of 37°C) indicate that the nature of the PVB may also be an important parameter for Tg, and that the amount of plasticizer is not necessarily the controlling parameter. For this additional reason, it is far from clear that the single comparison in D'Errico's Specification is reasonably indicative of unexpected results commensurate in scope with the claimed subject matter. Pfizer, 480 F.3d at 1370, 82 USPQ2d at 1338. Finally, we note as an aside, that Comparative example 15 in Toyama appears8 to anticipate claim 1, as it describes a laminated glass comprising 7 Final Office Action mailed 22 June 2006 ("Final Rejection"). 8 On the record before us, it is not certain that Toyama is prior art under 35 U.S.C. § 102(e) against the present claims, but D'Errico has waived argument on that issue. In any event, we observe that Toyama's related EP patent publication, EP 1,281,690 A1, has the same disclosure and is a 102(b) 16Page: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Next
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