Appeal No. 1997-2308
Application 08/504,266
claim 15 were 18 to 24 months. For the following reasons,
these test results are not adequate for overcoming the prima
facie case of obviousness.
It is not enough for appellants to show that the results
for appellants’ invention and the comparative examples differ.
The difference must be shown to be an unexpected difference.
See In re Freeman, 474 F.2d 1318, 1324, 177 USPQ 139, 143
(CCPA 1973); In re Klosak, 455 F.2d 1077, 1080, 173 USPQ 14,
16 (CCPA 1972). In the specification appellants do not even
provide an assertion of unexpected results, much less an
explanation as to why the claimed invention produces
unexpected results, and appellants have presented no evidence
to that effect. Appellants have provided mere attorney
argument (brief, page 7) that the results would have been
unexpected by one of ordinary skill in the art, and such
argument cannot take the place of evidence. See In re De
Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984);
In re Payne, 606 F.2d 303, 315, 203 USPQ 245, 256 (CCPA 1979);
In re Greenfield, 571 F.2d 1185, 1189, 197 USPQ 227, 230 (CCPA
1978); In re Pearson, 494 F.2d 1399, 1405, 181 USPQ 641, 646
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