Appeal No. 2000-0822
Application 09/037,555
substantial portion of the pores is filled with the solvent, not the resin” (reply brief, unnumbered
page 4).
We find no evidence in Kawata or elsewhere in the record to support appellants’ position.
It is well settled that unsupported arguments of counsel are entitled to little weight with respect to
establishing unexpected results or for other purposes. See In re Payne, 606 F.2d 303, 315, 203
USPQ 245, 256 (CCPA 1979); In re Lindner, 457 F.2d 506, 508, 173 USPQ 356, 358 (CCPA
1972). And to the extent that appellants are contending that the United States Patent to Kawata
is inoperative, the evidence required for such purpose is indeed substantial as there is a strong
presumption of validity respecting the disclosure of a United States Patent. See, e.g., In re
Lamberti, 545 F.2d 747, 192 USPQ 278 (CCPA 1976); In re Weber, 405 F.2d 1403, 160 USPQ
549 (CCPA 1969).
Accordingly, based on our consideration of the totality of the record before us, we have
weighed the evidence of anticipation found in Kawata with appellants’ countervailing evidence
of and argument for no anticipation in fact and find that the claimed invention encompassed by
appealed claims 1, 39, 40, 49, 53 and 54 are anticipated as a matter of fact under 35 U.S.C.
§ 102(b).
With respect to the ground of rejection of appealed claims 1, 39, 40, 49, 53 and 54 under
§ 103(a) as being unpatentable over Kawata in view of Mammino and further in view of
Creatura, our determination that the claimed process encompassed by appealed claim 1 is
anticipated by Kawata is dispositive because it is well settled that “anticipation is the ultimate of
obviousness.” See In re Baxter Travenol Labs., 952 F.2d 388, 392, 21 USPQ2d 1281, 1284-85
(Fed Cir. 1991), citing In re Fracalossi, 681 F.2d 792, 794, 215 USPQ 569, 571 (CCPA 1982).
Indeed, in this instance, appellants present essentially the same arguments with respect to the
ground of rejection under § 103(a) as for the ground of rejection under § 102(b).
Finally, we arrive at the grounds of rejection under § 102(b) and under § 103(a) based on
Shintani. The dispositive issue with respect to both grounds of rejection is whether the terms
“concaves” (e.g., col. 2, line 66) and “concavities” (e.g., col. 3, line 57) would have been
recognized by one of ordinary skill in this art to have a structure that can also be termed a “pore”
as that term is customarily defined, as we set forth above. See answer, pages 7 and 17-18; brief,
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