Appeal 2007-4259
Application 10/417,752
regard, Appellants’ position that the Declaration establishes unexpectedly
improved results is not persuasively explained or substantiated on this
record.
In addition, we emphasize that, although secondary considerations
such as unexpected results must be taken into account, they do not
necessarily control the obviousness conclusion. Pfizer, Inc. v. Apotex, Inc.,
480 F.3d 1348, 1371, 82 USPQ 1321, 1338 (Fed. Cir. 2007). Unexpectedly
superior results will not necessarily overcome a strong case of obviousness.
Id.
On the record of this appeal, it is questionable whether Appellants
have shown unexpected results, and certainly they have not shown
unexpected results which are commensurate in scope with claim 1, 5, 8, and
15. Therefore, we share the Examiner's ultimate determination that the
proffered Declaration evidence of nonobviousness does not outweigh the
applied reference evidence of obviousness. We hereby sustain, therefore,
the § 103 rejection advanced by the Examiner on this appeal.
The decision of the Examiner is affirmed.
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