Appeal No. 2002-0701
Application 09/201,269
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 declarants do not state that
the comparison shows unexpected results. The appellant’s counsel
asserts that the results are unexpected, but arguments of counsel
cannot take the place of evidence. De Blauwe, 736 F.2d at 705,
222 USPQ at 196; 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).
Third, in the comparison relied upon by the appellant, many
variables other than the polydispersity are varied, such as the
type and amount of petroleum distillate fraction, the heating
temperature, the amounts of styrene, stearyl methacrylate,
methacrylic acid and tBICM75, and the time of addition of the
monomers to the petroleum distillate fraction. Hence, the cause-
and-effect relationship which the appellant desires to show
between polydispersity and ink properties is lost in a welter of
unfixed variables.8 See In re Heyna, 360 F.2d 222, 228, 149 USPQ
8 Campbell teaches that the polydispersity increases as the
divinylbenzene content increases from 0 to 22 wt% (table 7), and
Puschak discloses reacting at least one monoethylenically
unsaturated monomer with 0.1 to 25 wt% divinylbenzene (col. 4,
20
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