Appeal No. 1996-3826
Application 08/222,477
emulsion, and a process using such a device would fall within claims 13 and 36 which do not specify the
manner in which the ingredients as mixed are combined. We find no disclosure in appellant’s
specification which establishes that the alleged criticality in the mixing of the ingredients would obtain
when such a device is used. In any event, as we pointed out above, Dubin suggests that the emulsifier,
which can contain fuel, can be mixed with either water or fuel prior to combining the ingredients in a
mixer, and appellant has not established that the alleged criticality is indeed an unobvious result in view
of these teachings.
Accordingly, in view of the similarity in the teachings of Kawaai and Dubin and the absence of
evidence in the record establishing the criticality of the processes of claims 13 and 36, we find that
appellant has not established that the aqueous fuels encompassed by claims 33 and 43 have properties
which distinguish the same from the aqueous fuels taught by the references. It is well settled that
arguments of counsel which are not supported by evidence in the record are entitled to little, if any,
weight. See generally In re Payne, 606 F.2d 303, 315, 203 USPQ 245, 256 (CCPA 1979).
Accordingly, based on our consideration of the totality of the record before us, we have
weighed the evidence of obviousness found in the combined teachings of Kawaai and Dubin with
appellant’s countervailing evidence of and argument for nonobviousness and conclude that the claimed
invention encompassed by appealed claims 2, 4, 6 through 11, 13 through 15, 17 through 22, 24
through 27 and 36 through 40, and the claimed invention encompassed by appealed claims 28
through 30, 33 through 35 and 41 through 45 would have been obvious as a matter of law under 35
U.S.C. § 103.
We now consider the ground of rejection of claim 32 over Kawaai in view of Dubin, further in
view of Morehouse. We found above (see supra p. 6) that claim 32 does not require the presence of
any amount of dihydroxyethyl tallow glycinate. Thus, we affirm the rejection of claim 32 based on the
combined teachings of Kawaai and Dubin for the reasons we set forth with respect to claims 33 and 43
above, including consideration of appellant’s arguments with respect thereto. We find it unnecessary to
our decision with respect to this issue to discuss Morehouse.
Accordingly, based on our consideration of the totality of the record before us, we have
weighed the evidence of obviousness found in Kawaai in view of Dubin, further in view of Morehouse
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