Appeal 2006-2774
Application 10/309,493
Applicant’s claims on appeal in this case. Nowhere in the prior art is a char
forming and a char reinforcing approach of Applicant disclosed” (Reply Br.
1).
We do not agree. Erismann expressly says that its composition can
include “char forming agents” and “reinforcing fillers such as glass fibers”
(Erismann, at [0030]). Glass fiber is listed as a “char reinforcement
material” in part (b) of claim 1. Therefore, we find Appellant’s statement
“[n]owhere in the prior art is a char forming and a char reinforcing approach
of Applicant disclosed” to be incorrect and a mischaracterization of the prior
art (Reply Br. 1).
Appellant also contends that “the Examiner equates Applicant’s Claim
1, elements (e) and (i) with the term LATEX as explained in Erismann
P0010 and P0019. This is chemically wrong! Every polymer scientist knows
that since the 1870’s that latex refers to the latex gathered for natural rubber
trees and includes natural rubber particles, protein, water, sterol glycosides,
resins, ash, and sugars. The use of latex in Erismann P0010 say that the latex
includes a polymer, a polyol, and an intumescent agent” (Reply Br. 1).
This argument has no merit. Erismann in paragraph [0019] refers to
“latex polymers” which are described by the same nomenclature recited in
element (e) of claim 1. Based on the same chemical nomenclature recited in
both instant claim 1 and Erismann, the Examiner reasonably presumed that
the chemical compounds were the same. Appellant has not rebutted this
reasonable presumption with evidence that Erismann’s polymers are
chemically different from those which are claimed. Arguments of counsel
cannot take the place of evidence lacking in the record. Estee Lauder Inc. v.
L’Oreal, S.A., 129 F.3d 588, 595, 44 USPQ2d 1610, 1615 (Fed. Cir. 1997).
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