Appeal No. 1998-0036 Page 9
Application No. 08/431,203
For the above reasons, we conclude that the Examiner has established a prima facie case of
obviousness. We note that while Appellants state that enhanced adhesion is achieved by reducing the
absorbed moisture to about 1% to about 2% by weight (Brief, page 2), Appellants’ do not point to any
particular objective evidence supporting the criticality of this range nor the ranges of temperatures and
pressures discussed in the specification which result in the claimed level of moisture. “[I]t is well settled
that unexpected results must be established by factual evidence. Geisler, 116 F.3d at 1470, 43
USPQ2d at 1365. Attorney arguments in the Brief cannot take the place of evidence. In re Lindner,
457 F.2d 506, 508, 173 USPQ 356, 358 (CCPA 1972). Furthermore, we note that “[m]ere
argument or conclusory statements in the specification does not suffice.” In re De Blauwe, 736 F.2d
699, 705, 222 USPQ 191, 196 (Fed. Cir. 1994). Therefore, we conclude that the totality of the
evidence supports a conclusion of prima facie obviousness with respect to the process of claim 1 and
those claims dependent thereon.
The Apparatus
Claim 14 is directed to an apparatus, namely, a roll sputter system. As an initial matter, we
note that the claimed apparatus was rejected over the combination of Swisher, Lindsay, Sartor and Ho.
However, the Examiner provides no reasoning specific to claim 14 that we can locate tending to show
that this combination of art describes or suggests a roll sputtering apparatus as claimed. As the
Examiner carries the burden of proof in establishing a prima facie case of obviousness and that burden
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