Appeal 2007-3794
Application 10/850,517
cellulosic materials, e.g., paper, are incompatible with Gill's water-based
silane/resin binders. Therefore, the bald statement that glass fibers and
cellulosic fibers are different is insufficient to satisfy Appellants' burden of
providing an evidentiary basis for its arguments. Meitzner v. Mindick, 549
F.2d 775, 782, 193 USPQ 17, 22 (CCPA 1977) ("Argument of counsel
cannot take the place of evidence lacking in the record.”) Consequently,
this argument is not persuasive of reversible Examiner error in his
conclusion of obviousness.
As to both the obviousness rejections based on either Geary or
Bondoc in view of Gill as evidenced by Terae, Appellants also argue that
since the silicone elastomers used by Gill are different from the silicone
resins disclosed by Terae, there neither a motivation nor a reasonable
expectation of success that Terae's silicone resins could be substituted for
Gill's silicone elastomers (Sub. Br. 4). However, Gill expressly describes its
silicone elastomers used in water based emulsions as "wet proofing resins"
(FF 9). Moreover, Terae expressly describes its water based (aqueous)
silicone emulsions as water-repellant agents (FF 11). Therefore, this
argument does not hold water, i.e., is not persuasive of Examiner error in his
conclusion of obviousness.
In short, the Examiner has provided reasons for combining the
teachings from Geary, Gill and Terae to arrive at the invention of claims 1-4
and 6-10 and the teachings from Bondoc, Gill and Terea to arrive at the
invention of claims 1-10, i.e., to further enhance the moisture resistance of
the foam board composites of either Geary or Bondoc. Attorney argument
lacking an evidentiary basis is insufficient to establish reversible Examiner
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