Appeal No. 95-2879
Application 08/085,657
which only the inventor taught is used against its teacher”).
Since, on this record, the examiner has not provided factual
evidence to support his position, we reverse the rejection. A
conclusion of obviousness must be based on evidence, not
unsupported arguments. In re Freed, 425 F.2d 785, 788, 165
USPQ 570, 572 (CCPA 1970);
In re Warner, 379 F.2d 1011, 1014-17, 154 USPQ 173, 176-78
(CCPA 1967), cert. denied, 389 U.S. 1057 (1968).
Accordingly, the rejection is reversed.
New Ground of Rejection
Under the provisions of 37 CFR § 1.196(b), we make the
following new ground of rejection.
Claims 1, 2, 5 through 8, 10 and 11 are rejected under
the judicially-created doctrine of obviousness-type double
patenting as being unpatentable over claims 1 through 3 of
U.S. Patent 5,254,589 (Picard). Although the conflicting
claims are not identical, they are not patentably distinct
from each other because the present compound would have been
obvious to one of ordinary skill in the art over the method of
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