Ex Parte D - Page 16

                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)                   
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