Appeal 2007-3673
Application 10/365,189
purpose, thus suggesting that the mixture would also be useful for the very
same purpose. In re Kerkhoven, supra; In re Susi, 440 F.2d 442, 445, 169
USPQ 423, 426 (CCPA 1971).
We now turn to the evidence presented in the Specification. The
examples in the Specification do not support Appellants’ argued position.
The data relied upon by Appellants is not commensurate in scope with the
claimed invention. See In re Marosi, 710 F.2d 799, 803, 218 USPQ 289,
292-93 (Fed. Cir. 1983) (holding that Marosi has not adduced evidence
commensurate in scope with their claims); see also In re Greenfield, 571
F.2d 1185, 1189, 197 USPQ 227, 230 (CCPA 1978) (“Establishing that one
(or a small number of) species gives unexpected results is inadequate proof,
for ‘it is the view of this court that objective evidence of non-obviousness
must be commensurate in scope with the claims which the evidence is
offered to support.’” (quoting In re Tiffin, 448 F.2d 791, 792, 171 USPQ
294, 294 (CCPA 1971)). Appellants tested only a few compositions, as
exhibited in the examples. However, the claims on appeal are much broader.
In so far as Appellants rely upon the data as a showing of secondary
indicia of non-obviousness, Appellants have failed to point to evidence
indicating the results in the data presented in the Specification were
considered to be unexpected to one of ordinary skill in the art. “It is well
settled that unexpected results must be established by factual evidence.
Mere argument or conclusory statements in the specification does not
suffice.” In re Soni, 54 F.3d 746, 750, 34 USPQ2d 1684, 1687 (Fed. Cir.
1995) (quoting In re De Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196
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