Megan Donovan et al.

Patent Trials and Appeals Board

Jul 29, 2019

13589219 - (D) (P.T.A.B. Jul. 29, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/589,219 08/20/2012 Megan DONOVAN 71470-US-NP 1013
14269 7590 07/29/2019
The Dow Chemical Company/Ronald Bakule
P.O. BOX 1967
2040 Dow Center
Midland, MI 48641
EXAMINER
RIETH, STEPHEN EDWARD
ART UNIT PAPER NUMBER
1764
NOTIFICATION DATE DELIVERY MODE
07/29/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
FFUIMPC@dow.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MEGAN DONOVAN, ALVIN M. MAURICE,
EDWIN H. NUNGESSER, and WEI ZHANG
____________

Appeal 2018-005287
Application 13/589,219
Technology Center 1700
____________

Before ROMULO H. DELMENDO, WESLEY B. DERRICK, and
JANE E. INGLESE, Administrative Patent Judges.

INGLESE, Administrative Patent Judge.

DECISION ON APPEAL
Appellants1 request our review under 35 U.S.C. § 134(a) of the
Examiner’s decision to finally reject claims 1 and 3–52. We have
jurisdiction over this appeal under 35 U.S.C. § 6(b).
We AFFIRM.

1 Appellants identify DowDuPont as the real party in interest. Appeal Brief
filed January 3, 2018 (“App. Br.”), 3.
2 Final Office Action entered June 7, 2017 (“Final Act.”), 1.
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STATEMENT OF THE CASE
Claim 1, the sole pending independent claim, illustrates the subject
matter on appeal, and is reproduced below with language italicized that is of
particular relevance to the present appeal:
1. An aqueous composition consisting essentially of:
a particulate polymer having a particle diameter of from
0.7 microns to 50 microns,
said polymer comprising, as copolymerized units,
from 0.3% to 1 %, by weight based on said polymer
weight, monomer selected from the group consisting of
styrene and alpha-methylstyrene,
said polymer having been formed in the presence
of from 0.01 % to 0.5% isoascorbic acid, by weight
based on said polymer weight;
said particulate polymer being denser than
water; and
from 0.1 % to 5%, by weight based on said polymer
weight, thickener.

App. Br. 12 (Claims Appendix) (emphasis added and spacing altered
relative to original).
The Examiner maintains the following rejections in the Examiner’s
Answer entered February 28, 2018:
I. Claims 1, 3, and 4 under 35 U.S.C. § 103(a) as unpatentable
over Bardman3 as evidenced by Density of Polymers4;

3 Bardman et al., US 2007/0043162 A1, issued February 22, 2007
(“Bardman”).
4 SCIENTIFIC POLYMER PRODUCTS, INC., Density of Polymers (by density),
http://scientificpolymer.com/density-of-polymers-by-density (“Density of
Polymers”).
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II. Claim 5 under 35 U.S.C. § 103(a) as unpatentable over
Bardman as evidenced by Specia1Chem4Coatings5 and Density of
Polymers; and
III. Claims 1 and 3–5 under 35 U.S.C. § 103(a) as unpatentable
over Chiou6 as evidenced by Density of Polymers.

DISCUSSION
Upon consideration of the evidence relied upon in this appeal and
each of Appellants’ contentions, we affirm the Examiner’s rejections of
claims 1 and 3–5 under 35 U.S.C. § 103(a), for the reasons set forth in the
Final Action, the Answer, and below.
We review appealed rejections for reversible error based on the
arguments and evidence the appellants provide for each issue the appellants
identify. 37 C.F.R. § 41.37(c)(1)(iv); Ex parte Frye, 94 USPQ2d 1072,
1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637
F.3d 1356, 1365 (Fed. Cir. 2011) (Explaining that even if the Examiner had
failed to make a prima facie case, “it has long been the Board’s practice to
require an applicant to identify the alleged error in the examiner’s
rejections.”)).
Rejection I: claims 1, 3, and 4 under 35 U.S.C. § 103(a) as unpatentable
over Bardman as evidenced by Density of Polymers
Appellants argue claims 1, 3, and 4 together, and, therefore, do not
present arguments directed to the separate patentability of any particular

5 NATROSOL® 250 HR, www.specialchem4coatings.com/tds/natrosol-250-
hr/ashland-inc/4979/index.aspx (“Specia1Chem4Coatings”).
6 Chiou et al., US 2007/0218291 A1, issued September 20, 2007 (“Chiou”).
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claim. App. Br. 6–7. We, accordingly, select claim 1 as representative, and
decide the appeal as to claims 1, 3, and 4 based on claim 1 alone. 37 C.F.R.
§ 41.37(c)(1)(iv).
Bardman discloses an aqueous dispersion of particles comprised of
first and second polymers. Bardman ¶¶ 2, 5. Bardman discloses that the
particles have an average diameter of from 0.2 to 1.5 microns. Id. ¶ 18.
Bardman discloses that the polymeric particles comprise from 10% to
80% by weight of the first polymer, which Bardman indicates comprises at
least one monoethylenically unsaturated monomer, and from 0.05% to 90%
by weight of at least one multi-ethylenically unsaturated monomer. Id. ¶ 5.
Bardman discloses that suitable ethylenically unsaturated monomers include
styrene and substituted styrenes. Id. ¶ 7. Appellants do not dispute the
Examiner’s determination that Bardman indicates from these disclosures that
the first polymer comprises from 10% to 99.95% by weight of a
monoethylenically unsaturated monomer, which, as discussed above,
Bardman discloses can be styrene. Compare Final Act. 4, with App. Br. 6–
7. Nor do Appellants dispute the Examiner’s determination that because
Bardman’s polymeric particles comprise from 10% to 80% by weight of the
first polymer, the amount of styrene or substituted styrenes in Bardman’s
polymeric particles would be 1% to 80% by weight, which overlaps the
range recited in claim 1. Compare Final Act. 4, with App. Br. 6–7.
The Examiner finds that Example 7 of Bardman describes preparing
polymeric particles from a first polymer comprising styrene in a process that
utilizes iso-ascorbic acid. Final Act. 4; see also Bardman ¶¶ 62, 67.
Appellants argue that the range of styrene content in Bardman’s
polymeric particles calculated by the Examiner—1 % to 80 %—overlaps the
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range recited in claim 1 (0.3% to 1%) by only “one point,” and Appellants
assert that Bardman does not provide any “motivation” that would have led
one of ordinary skill in the art to the “lower levels” recited in claim 1. App.
Br. 6–7.
It is well-established, however, that “[i]n cases involving overlapping
ranges . . . even a slight overlap in range establishes a prima facie case of
obviousness.” In re Peterson, 315 F.3d 1325, 1329–30 (Fed. Cir. 2003). As
discussed below, Appellants do not demonstrate the criticality of the styrene
or alpha-methylstyrene weight percentages recited in claim 1.
Consequently, Appellants’ arguments are insufficient to rebut the prima
facie case of obviousness established by the uncontroverted overlap between
the styrene or alpha-methylstyrene weight range recited in claim 1 and the
styrene or substituted styrene weight range implicitly disclosed in Bardman.
In re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990) (indicating that in
cases in which the difference between the claimed invention and the prior art
is some range or other variable within the claims, the applicant must show
that the particular range is critical, generally by showing that the claimed
range achieves unexpected results relative to the prior art range.).
Appellants argue that only one stage of the polymer synthesis
described in Bardman’s Example 7 occurs in the presence of a non-
formaldehyde reductant, and Appellants argue that the Examiner’s
conclusion that the exemplified particles are formed in presence of a non-
formaldehyde reductant is, therefore, flawed. App. Br. 7; Reply Br. 2–3.
Appellants argue that the Examiner does not point to any teaching or
suggestion in Bardman indicating that “the reductant is in any manner
critical.” App. Br. 7.
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The recitation in claim 1, however, of “said polymer having been
formed in the presence of from 0.01% to 0.5% isoascorbic acid, by weight
based on said polymer weight” is a product-by-process limitation. It is well-
established that “even though product-by-process claims are limited by and
defined by the process, determination of patentability is based on the product
itself.” In re Thorpe, 777 F.2d 695, 697 (Fed. Cir. 1985). Accordingly, for a
claim that includes a product-by-process limitation, once the examiner
provides a rationale tending to show that the claimed product appears to be
the same or similar to that of the prior art, although produced by a different
process, the burden shifts to the appellants to come forward with evidence
establishing an unobvious difference between the claimed product and the
prior art product. In re Marosi, 710 F.2d 799, 802 (Fed. Cir. 1983).
In the present case, Example 7 of Bardman describes preparing an
aqueous dispersion of polymeric particles by a process that includes
preparing a monomer emulsion from methyl(meth)acrylate and butyl
acrylate, and combining the monomer emulsion with a first polymer
comprising styrene (prepared as described in Bardman’s Example 2), t-butyl
hydroperoxide, iso-ascorbic acid, and water. Bardman ¶¶ 62, 67. Although
Example 2 of Bardman, which describes preparing the first polymer from
styrene monomers, does not disclose forming the polymer in the presence of
iso-ascorbic acid (id. ¶ 62), the Examiner determines that “it is unclear how
or why the implied product structure would be any different should
isoascorbic acid be used in one or all of the stages involved in
polymerization.” Ans. 11–12. Thus, the Examiner sets forth a rationale
tending to show that the particulate polymer recited in claim 1 appears to be
the same or similar to the polymeric particles of Example 7 of Bardman.
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The burden, therefore, shifts to Appellants to come forward with evidence
establishing an unobvious difference between the particulate polymer recited
in claim 1 and the polymeric particles produced as described in Example 7
of Bardman.
On the record before us, Appellants do not meet this burden.
Specifically, Appellants do not provide any evidence establishing an
unobvious difference between the polymeric particles produced as described
in Example 7 of Bardman and particulate polymer recited in claim 1. App.
Br. 6–8. Nor do Appellants establish that use of an isoascorbic acid
reductant to produce a particulate polymer as recited in claim 1 would result
in a particulate polymer that is structurally distinct or different from
polymeric particles produced as described in Bardman’s Example 7. Id.
Appellants argue that the size of the polymeric particles produced as
described in Bardman’s Example 7 is 526 nm, which is outside the particle
size range recited in claim 1, and Appellants contend that the particle size is
“a critical factor in [A]ppellants’ invention to prevent sedimentation in their
dispersions of particles.” App. Br. 7.
Bardman’s disclosures are not limited to Example 7, however. As
discussed above, Bardman broadly discloses polymeric particles having an
average particle diameter of from 0.2 to 1.5 microns, which overlaps the
particle size range recited in claim 1, rendering the recited range prima facie
obvious. Peterson, 315 F.3d at 1329–30. On this appeal record, Appellants
do not present any evidence establishing the criticality of the particle size
range recited in claim 1. Appellants’ unsupported arguments to the contrary
are, therefore, unpersuasive of reversible error in the Examiner’s rejection.
Woodruff, 919 F.2d at 1578 (Fed. Cir. 1990); Icon Health & Fitness, Inc. v.
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Strava, Inc., 849 F.3d 1034, 1043 (Fed. Cir. 2017) (“Attorney argument is
not evidence” and cannot rebut other admitted evidence).
Appellants argue that “the essential element in Bardman” is that the
particles disclosed in the reference “include structure that provides, when
dry, at least one void,” and Appellants contend that “there is no basis for an
obviousness rejection over Bardman absent a rationale within Bardman for
eliminating this critical structural element or rendering it optional.” App.
Br. 7.
As the Examiner explains (Ans. 14), however, Bardman explicitly
indicates that the polymeric particles described in the reference include at
least on void when dry, while claim 1 recites an aqueous composition
consisting essentially of a particulate polymer. Bardman ¶ 20. Moreover,
as the Examiner also explains, claim 1 does not exclude voids from being
present in the particulate polymer recited in the claim. Ans. 14.
Although Appellants argue that Bardman is an “inappropriate”
reference because “it is entirely directed to a different and unrelated
objective” than Appellants’ invention (App. Br. 6), it is well-established that
“[i]n determining whether the subject matter of a patent claim is obvious,
neither the particular motivation nor the avowed purpose of the patentee
controls.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007).
Consequently, Appellants’ argument are unpersuasive of reversible
error in the Examiner’s rejection of claims 1, 3, and 4 under 35 U.S.C.
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§ 103(a) as unpatentable over Bardman as evidenced by Density of
Polymers7, which we accordingly sustain.
Rejection II: claim 5 under 35 U.S.C. § 103(a) as unpatentable over
Bardman as evidenced by Specia1Chem4Coatings and Density of Polymers
To address this rejection, Appellants rely on the arguments discussed
above that Appellants present for Rejection I, and contend that the additional
reference applied in this rejection fails to remedy the deficiencies of
Bardman. App. Br. 8. Because we are unpersuaded of reversible error in
the Examiner’s rejection of claim 1 for reasons discussed above, Appellants’
position as to this ground of rejection is also unpersuasive of reversible
error.
Rejection III: claims 1 and 3–5 under 35 U.S.C. § 103(a) as unpatentable
over Chiou as evidenced by Density of Polymers
Appellants argue claims 1 and 3–5 together, and, therefore, do not
present arguments directed to the separate patentability of any particular
claim. App. Br. 8–11. We, accordingly, select claim 1 as representative,
and decide the appeal as to claims 1 and 3–5 based on claim 1 alone.
37 C.F.R. § 41.37(c)(1)(iv).
Chiou discloses an aqueous coating composition comprising duller
particles having an average diameter of 1 to 20 microns. Chiou ¶ 8. Chiou
discloses that the duller particles may be comprised of multi-stage polymers
having rubbery cores comprising copolymers that include one or more vinyl
monomers, such as styrene, in an amount of from 0 to 50 % by weight. Id.

7 Because Appellants do not contest the Examiner’s reliance on Density of
Polymers, we need not address this reference for disposition of this appeal.
App. Br. 7.
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¶¶ 35, 36. Chiou discloses that one or more shell polymers surround the
core copolymers, and explains that the shell polymers comprise from about
0.1% to about 40% of the total particle weight. Id. ¶ 39. Appellants do not
dispute the Examiner’s determination that Chiou implicitly indicates from
these disclosures that the core copolymers constitute 60%–99.9% by weight
of the particles. Compare Final Act. 8, with App. Br. 8–11. The Examiner
determines that because Chiou discloses that the core copolymers can
include 0 to 50% by weight styrene, Chiou describes embodiments in which
duller particles include 0% to 30% by weight styrene. Final Act. 8.
Chiou discloses producing the duller particles by an emulsion
polymerization process that involves use of a redox initiator coupled with a
reductant, such as isoascorbic acid. Chiou ¶¶ 64–67.
Appellants argue that the styrene level in the three-stage polymer
described in Chiou’s Example 1 is approximately 0.1 weight%, which is
outside the range recited in claim 1, and “the styrene stage was not prepared
in the presence of a reductant, much less isoscorbic acid.” App. Br. 9.
Appellants argue that the Examiner’s determination that Chiou discloses
particles that include 0% to 30% styrene “appears to [be] based on
compositions from two different embodiments of the rubbery cores of duller
particles A and the level of shell polymer in duller particles A.” Id.
Although the styrene content of the particles described in Example 1
of Chiou may be outside the range recited in claim 1 as Appellants assert,
Chiou’s disclosures are not limited to Example 1. Rather, as discussed
above, Chiou more broadly discloses duller particles that may be comprised
of multi-stage polymers having rubbery cores surrounded by one or more
shell polymers. Contrary to Appellants’ arguments, the rubbery cores and
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shell polymers described in Chiou are not directed to different embodiments,
but, rather, relate to different stages of multi-stage polymers that constitute
the duller particles described in the reference. As also discussed above,
Chiou indicates that the rubbery cores may comprise copolymers including
one or more vinyl monomers, such as styrene, in an amount of from 0 to 50
% by weight, while the shell polymers comprise from about 0.1% to about
40% of the total particle weight. As the Examiner determines (Final Act. 8),
because Chiou discloses that the shell polymers comprise from about 0.1%
to about 40% of the total particle weight, Chiou implicitly indicates that the
core copolymers constitute 60%–99.9% by weight of the particles. And as
the Examiner also determines (Final Act. 8), because Chiou discloses that
the rubbery cores may comprise copolymers that include 0 to 50 % by
weight styrene monomers, Chiou implicitly discloses duller particles that
may include 0 to 30 % by weight styrene monomers, which encompasses the
styrene monomer range recited in claim 1.
Furthermore, although the styrene-containing polymer of the three-
stage polymer described in Chiou’s Example 1 may not have been prepared
in the presence of isoscorbic acid as Appellants assert, we point out again
that Chiou’s disclosures are not limited to Example 1. Rather, as discussed
above, Chiou more broadly discloses producing the duller particles
described in the reference by an emulsion polymerization process that
involves use of a redox initiator coupled with a reductant, such as
isoascorbic acid. In re Mercier, 515 F.2d 1161, 1165 (CCPA 1975) (“[A]ll
of the relevant teachings of the cited references must be considered in
determining what they fairly teach to one having ordinary skill in the art.”).
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Appellants argue that Chiou’s teaching that styrene is optional (due to
the 0% lower weight limit) discourages any conclusion that styrene is
beneficial to Chiou’s objective, “thereby negating the criticality of styrene,”
and, therefore, “Chiou directs one skilled in the art away from experimenting
with that monomer and closely related monomers,” and would not have
motivated one skilled in the art towards styrene in the amount recited in
claim 1. App. Br. 9–10.
As discussed above, however, Chiou implicitly discloses duller
particles that may include 0 to 30 % by weight styrene monomer, which
encompasses the styrene monomer weight range recited in claim 1,
rendering the recited range prima facie obvious. We find no disclosure in
Chiou that criticizes or disparages use of styrene and closely related
monomers in the polymeric particles described in the reference, and
Appellants do not identify any such disclosure. App. Br. 8–11. Contrary to
Appellants’ arguments, Chiou, therefore, would not have directed one of
ordinary skill in the art away from particulate polymers having a styrene
content as recited in claim 1. DyStar Textilfarben GmbH & Co.
Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1364 (Fed. Cir. 2006)
(“We will not read into a reference a teaching away from a process where no
such language exists.”); In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004)
(“The prior art’s mere disclosure of more than one alternative does not
constitute a teaching away from any of these alternatives because such
disclosure does not criticize, discredit, or otherwise discourage the solution
claimed”); In re Gurley, 27 F.3d 551, 552–53 (Fed. Cir. 1994).
Appellants argue that Chiou “generically discloses a list of at least 21
formaldehyde and non-formaldehyde reducing agents . . . unconnected to
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any particular particle size, composition, or the like, or any functional result
of a composition prepared therefrom.” App. Br. 10. Appellants argue that
Chiou does not distinguish the functionality of various classes of reductants,
particularly based on whether they are formaldehyde or non-formaldehyde
reducing agents, and, therefore, it would not have been obvious to one of
ordinary skill in the art to select an isoascorbic acid reducing agent from
among the numerous reductants discloses in Chiou. Id.
One of ordinary skill in the art seeking to produce polymeric polymers
by emulsion polymerization as disclosed in Chiou, however, would have
found it obvious to utilize any of the reducing agents that Chiou indicates are
suitable for use in such a process, including isoascorbic acid. Chiou’s
disclosure of a multitude of effective reducing agents does not render any
particular reducing agent less obvious, and Chiou is available for all that it
would have fairly suggested to a person of ordinary skill in the art at the time
of Appellants’ invention. Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804,
807 (Fed. Cir. 1989) (“That the ’813 patent discloses a multitude of effective
combinations does not render any particular formulation less obvious. This
is especially true because the claimed composition is used for the identical
purpose.”); Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327,
335 (1945) (“Reading a list and selecting a known compound to meet known
requirements is no more ingenious than selecting the last piece to put into
the last opening in a jig-saw puzzle.”); In re Leshin, 277 F.2d 197, 199
(CCPA 1960) (“Mere selection of known plastics to make a container-
dispenser of a type made of plastics prior to the invention, the selection of
the plastics being on the basis of suitability for the intended use, would be
entirely obvious.”).
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Appellants argue that Chiou is an “inappropriate reference” because
“it is entirely directed to a different and unrelated objective” than
Appellants’ invention, and, therefore, “one skilled in the art seeking to solve
their [Appellants’] problem would not look to augment or modify Chiou to
solve their problem without undue reliance on hindsight search for certain
elements of [A]ppellants’ invention.” App. Br. 9, 10.
As discussed above, however, neither the particular motivation nor the
avowed purpose of the inventors bears any moment on a proper analysis of
whether a claimed invention would have been obvious. KSR, 550 U.S. at
419. Furthermore, the Examiner’s rejection is based upon the relied-upon
disclosures of Chiou as evidenced by Density of Polymers, and the
Examiner articulates a thorough, reasoned explanation grounded on sound
factual findings for why the applied prior art would have suggested the
aqueous composition of claim 1 to one of ordinary skill in the art at the time
of Appellants’ invention. Final Act. 6–9. Consequently, the Examiner’s
rejection is not based on hindsight as Appellants assert.
Appellants argue that data presented in Table 2.1 of their
Specification demonstrate the criticality of the styrene and alpha-
methylstyrene monomer content recited in claim 1, and the criticality of
forming a particulate polymer as recited in claim 1 in the presence of an
isoascorbic acid reductant. App. Br. 10–11; Reply Br. 2–3. Appellants
argue that the inventive aqueous compositions of Examples 2 and 3, which
both included particulate polymer Sample A that contained 0.5 % by weight
copolymerized alpha-methylstyrene, and was polymerized in the presence of
isoascorbic acid, were “surprisingly superior” to the aqueous compositions
of comparative Examples H and I, because the compositions of Examples 2
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and 3 were free of sediment and syneresis. App. Br. 10; Reply Br. 2–3;
Spec. 15, l. 1–16, l. 3; 23, l. 14–24, l. 4. The compositions of comparative
Examples H and I included particulate polymer Sample B that did not
contain copolymerized alpha-methylstyrene. Spec. 16, l. 20–18, l. 3.
Appellants argue that the inventive aqueous compositions of Examples 2 and
3 were also “surprisingly superior” to the aqueous compositions of
comparative Examples D through G, which included particulate polymer
Samples C and D, which were polymerized in the presence of a sodium
sulfoxylate formaldehyde reductant, rather than isoascorbic acid. App. Br.
10–11; Reply Br. 2–3; Spec. 18, l. 20–20, l. 3; 20, l. 20–22, l. 3; 23, l. 14–24,
l. 4. Appellants point out that Sample C did not contain copolymerized
alpha-methylstyrene, while polymer Sample D did contain copolymerized
alpha-methylstyrene. Id.
The burden of analyzing and explaining Specification disclosures to
establish unexpected results rests with the appellants. In re Klosak, 455 F.2d
1077, 1080 (CCPA 1972) (“[T]he burden of showing unexpected results
rests on he who asserts them.”). To meet this burden, the appellants must
provide objective evidence demonstrating that the claimed subject matter
imparts results that would have been unexpected by one of ordinary skill in
the art at the time of the appellants’ invention relative to the closest prior art,
which are commensurate in scope with the claimed subject matter. Id. at
1080 (“[I]t is not enough to show that results are obtained which differ from
those obtained in the prior art: that difference must be shown to be an
unexpected difference.”); In re Baxter Travenol Labs., 952 F.2d 388, 392
(Fed. Cir. 1991) (“[W]hen unexpected results are used as evidence of
nonobviousness, the results must be shown to be unexpected compared with
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the closest prior art.”); In re Harris, 409 F.3d 1339, 1344 (Fed. Cir. 2005)
(“Even assuming that the results were unexpected, Harris needed to show
results covering the scope of the claimed range. Alternatively Harris needed
to narrow the claims.”); In re Greenfield, 571 F.2d 1185, 1189 (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 (CCPA 1971)));
On the record before us, Appellants do not meet this burden. App. Br.
6–11. First, Appellants do not explain why data for two aqueous
compositions (those of Examples 2 and 3) that each include the same
particulate polymer Sample A containing the same monomer (alpha-
methylstyrene) at a single concentration (0.5 % by weight) are reasonably
commensurate with the types and amounts of monomers recited in claim 1.
Id. Second, the results obtained for the aqueous compositions of inventive
Examples 2 and 3 relative to those of comparative Examples D through G do
not provide a comparison to the closest prior art, because Chiou discloses
use of an isoascorbic acid reducing agent. Finally, Appellants do not direct
us to any persuasive evidence or averment evincing that the relied-upon
results would have been unexpected by one of ordinary skill in the art at the
time of their invention. Id. Appellants’ unsupported arguments to that
effect cannot take the place of the evidence required to establish that the
results actually would have been unexpected. In re Geisler, 116 F.3d 1465,
1470 (Fed. Cir. 1997) (quoting In re De Blauwe, 736 F.2d 699, 705 (Fed.
Cir. 1984)); see also In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974)
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(“Attorney’s argument in a brief cannot take the place of evidence.”).
Therefore, considering the totality of the evidence relied upon in this
appeal, a preponderance of the evidence weighs in favor of the Examiner’s
conclusion of obviousness. We, accordingly, sustain the Examiner’s
rejection of claims 1 and 3–5 under 35 U.S.C. § 103(a) as unpatentable over
Chiou as evidenced by Density of Polymers.

DECISION
We affirm the Examiner’s rejections of claims 1 and 3–5 under
35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED