Appeal No. 2002-0771 Page 8
Application No. 09/294,288
“teach away” as Torregrossa does not suggest that the line of development flowing from the
reference's disclosure is unlikely to be productive of the result sought by the applicant. In re
Gurley, 27 F.3d 551, 553, 31 USPQ2d 1130, 1131 (Fed. Cir. 1994).
Appellants argue that applying the shear force to break up the bubbles produces an
unexpected result. The result is not referred to in the specification as being unexpected and we
note that attorney arguments in the brief cannot take the place of evidence. In re Lindner, 457
F.2d 506, 508, 173 USPQ 356, 358 (CCPA 1972). Nor is there any objective evidence of
unexpected results. In addition, Appellants provide no evidence that the asserted increase in
efficiency is an increase in comparison to the efficiency of Torregrossa. See In re Baxter
Travenol Labs., 952 F.2d 388, 392, 21 USPQ2d 1281, 1285 (Fed. Cir. 1991)(The “difference in
results” must be established as being between the claimed subject matter and the closest prior
art.).
After reviewing the totality of the evidence before us, it is our conclusion that, the
Examiner established a prima facie case of unpatentability with respect to the subject matter of
claims 1-10 and 12-19 which has not been sufficiently overcome by Appellants.
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