Appeal No. 95-4830
Application 07/899,361
(CCPA 1971).
Appellants argue that the declaration of Okabe filed on
January 24, 1994 (paper no. 8) shows that the compounds of
appellants’ claimed invention, but not those of Suzuki, show a
tristable S*(3) phase in both heating and cooling cycles
(brief, pages 13-15). For the following reasons, we are not
persuaded by this argument.
First, the declaration shows a difference between
appellants’ claimed compounds and those of Suzuki, but
appellants have provided no evidence that such a difference
would have been unexpected by one of ordinary skill in the
art. See Freeman, 474 F.2d at 1324, 177 USPQ at 143; Klosak,
455 F.2d at 1080, 173 USPQ at 16. Appellants merely provide
attorney argument that an unexpected result is produced, and
such arguments of counsel cannot take the place of evidence.
See De Blauwe, 736 F.2d at 705, 222 USPQ at 196; Payne, 606
F.2d at 315, 203 USPQ at 256; Greenfield, 571 F.2d at 1189,
197 USPQ at 230; Pearson, 494 F.2d at 1405, 181 USPQ at 646.
Second, in the comparison between Experiment 1 and
Experiment 3, both the internal and external esters are
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