Appeal No. 1997-3234
Application 08/040,671
as being correct.
Appellants argue that because their polymeric support has a
microporous structure, their catalyst can be used in a
polymerization media wherein the aluminoxane is soluble, whereas
the EP ‘312 catalyst is limited to use in polymerization media in
which the aluminoxane is insoluble (brief, pages 5-6). This
argument is not well taken because the polymerization solvents
disclosed in EP ‘312 (page 24, lines 9-14) are essentially the
same as those used by appellants (specification, page 26, line 31
- page 27, line 4). Appellants have not provided a comparison,
which is commensurate in scope with the claims, between their
claimed invention and the closest EP ‘312 catalysts, and
explained why the results would have been unexpected by one of
ordinary skill in the art. Appellants have merely provided
attorney argument, 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 (CCPA 1974).
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