Interference No. 103,995 Paper 29
Morel v. Sekhar Page 25
invention, but only claim one patentable invention. Thus, the fact that claim 1 of Sekhar
‘513 is limited to carbonaceous bodies with non-glassy protective coatings is not
dispositive. Attorney argument cannot take the place of evidence lacking in the record.
Meitzner v. Mindick, 549 F.2d 775, 782, 193 USPQ 17, 22 (CCPA), cert. denied, 434 U.S.
854 (1977).
To the extent Morel might be relying on the Laurent Declaration (MAEx 1) (see pp.
10-12 above), there is nothing inconsistent between the Laurent Declaration at ¶¶ 4 and 5
(fact 31 above, p. 11) and the disclosure in Sekhar ‘513 and WO 88/03519 as to formation
of boro-silicate “glass” in an oxidizing atmosphere. Furthermore, Dr. Laurent’s testimony
that “SiC...does not necessarily take part in the vitrification [i.e., glass forming] reaction”
(MAEx 1, p. 3, ¶ 6 reproduced in fact 32, p. 10 above) is not inconsistent with the silicon
compound taking part in a glass forming, i.e., vitrifying, reaction. Finally, other method
parameters, such as thickness of coating, rate of temperature rise, etc. might affect what
type of coating is obtained.
For the above reasons, Morel has failed to establish that the coating compositions
of Morel claims 2 and 5 produce “materially different” coatings from the coatings described
(not claimed) in Sekhar ‘513.
C. Are Morel claims 2 and 5 unpatentable for obviousness over Sekhar
‘476
48. Sekhar ‘476 describes a refractory coating
obtained by applying to the surface of a substrate...which needs to be
coated and protected, a well chosen micropyretic slurry which when dried is
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