Appeal No. 2001-0233
Application 08/668,640
microns, and 50 microns. First, we observe that the composition of Examples 10-12 of
the ‘759 patent does not fall within the scope of the instant claims. We do not accept
the attorney argument that they are logically connected or parallel processes. Second,
we observe that the three data points (<1, 10, and 50 microns) are hardly representative
of the claimed range.
Because the relied upon evidentiary showing is insufficient, there is nothing to
substantiate the appellants' allegation that the criticality of the claimed range has been
established. Further, "naked attorney argument is 'insufficient to establish unexpected
results.'" In re Geisler, 116 F.3d 1465, 1471, 43 USPQ2d 1362, 1366 (Fed. Cir. 1997)
(quoting In re Soni, 54 F.3d 746, 750, 34 USPQ2d 1684, 1687 (Fed. Cir. 1995)).
Consequently, the prima facie case of obviousness over Takeda is not rebutted.
Summary of Decision
The rejection of claims 1-4, 6-12, 15, 36 and 37 under 35 U.S.C. § 103(a) as
unpatentable over Takeda alone or taken with Yamamoto is sustained.
The rejection of claims 1-4, 7-9, 12, 14, 15, 36, and 37 under 35 U.S.C § 103(a)
as being unpatentable over Beck II or Beck I in view of Porte, Takeuchi, or Ayama is
reversed.
The rejection of claims 1, 2, 4-9, 12, 14, 36, and 37 under 35 U.S.C. § 103(a) as
being unpatentable over Nishihara is reversed.
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