Appeal 2007-4259
Application 10/417,752
We now turn to Appellants evidence of unexpected results.
Appellants argue that “[t]he Declaration of Philip Confalone2, Appendix IX,
clearly states that the results observed with binder compositions containing
relatively high percentages of opacifying agents substituted for N-methylol
acrylamide crosslinked resin are surprising. Such discoveries are
patentable” (Br. 5). Appellants further contend “[t]hat the tensile strengths
achieved by the compositions in the pending application are surprising
because comparable tensile strengths can be achieved while employing 20
percent less binding material, and instead, using approximately 20 percent of
an opacifying agent which is not known to have binding properties” (Br. 6).
For a number of reasons, the Appellants’ Declaration evidence of
record is inadequate to establish nonobviousness.3 First of all, the
Declaration is deficient because it does not adequately explain the
components that were utilized in creating the information contained in
Table I. 4
Second, the examples presented in Table I only compare a few latex
binders and opacifying agents. Furthermore, the opacifying agents have
2 The Declaration was signed May 23, 2005.
3 We note that the Declaration has been drafted utilizing third person
pronouns (see Declaration ¶¶ 1, 3, 4, and 7). Thus, it appears as if the
Declaration was prepared by someone other than the Declarant.
4 A review of the Specification reveals that similar information was
presented including a description of the trade names of the materials utilized
(Specification 7-9). We will treat the Declaration as if it is based upon the
information presented in the Specification of the present application.
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