Appeal No. 2001-1820
Application No. 09/169,280
is “likely” that the metals complex and crosslink without
interaction with the surface in Philipp (Brief, paragraph
bridging pages 6-7). However, attorney argument cannot take the
place of evidence. See In re Scarborough, 500 F.2d 560, 566, 182
USPQ 298, 302 (CCPA 1974). Appellants have not presented any
evidence to support their argument, nor shown any difference in
the process steps and sol composition disclosed by Philipp.
Contrary to appellants’ arguments (Brief, page 7), Philipp does
disclose the use of acetic acid (as a condensation catalyst),
which appellants denominate as a hydrolysis rate stabilizer (see
col. 4, l. 7), and teaches the improvement of adhesion, not any
reduction in adhesion (col. 1, ll. 8-22).
For the foregoing reasons and those stated in the Answer, we
determine that the examiner has presented a prima facie case of
obviousness in view of the reference evidence. Based on the
totality of the record, including due consideration of
appellants’ arguments, we determine that the preponderance of
evidence weighs most heavily in favor of obviousness within the
meaning of section 103(a). Accordingly, we affirm the examiner’s
rejection of the claims on appeal under 35 U.S.C. § 103(a) over
Philipp.
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