Appeal No. 1999-1832
Application No. 08/474,233
Second, it is not enough for the appellants to show that the
results for the 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). The appellants’ specification
states (page 23) that the claimed process produced lower xylene
solubles and higher crystallinity than the comparative examples,
but does not indicate that one of ordinary skill in the art would
have considered the differences in these properties between the
claimed process and the comparative examples to be unexpected.
The appellants have provided mere attorney argument to that
effect, and such argument of counsel 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). Regardless of the fact that the
appellants vary the Ziegler-Natta catalyst component rather than
the electron donor in their comparisons, it reasonably appears
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