Appeal No.2003-0078 Page 8
Application No.09/257,066
inherent for different amphoteric surfactants (reply brief, page
6), no evidence to substantiate that any two or all of the
amphoteric surfactants listed in Table 1b of Falk ‘967 do in fact
have the same temperature resistance has been furnished by
appellants. Appellants are in the best position to provide such
evidence. Unsupported arguments of counsel simply cannot take
the place thereof. See In re Pearson, 494 F.2d 1399, 1405, 181
USPQ 641, 646 (CCPA 1974).
Appellants also contend that the specification examples
furnish indicia of unobviousness. To the extent that appellants
are asserting that the examples establish unexpected results for
the claimed composition, we note that the question as to whether
unexpected advantages have been demonstrated is a factual
question. In re Johnson, 747 F.2d 1456, 1460, 223 USPQ 1260,
1263 (Fed. Cir. 1984). Thus, it is incumbent upon appellants to
supply the factual basis to rebut the prima facie case of
obviousness established by the examiner. See, e.g., In re
Klosak, 455 F.2d 1077, 1080, 173 USPQ 14, 16 (CCPA 1972).
Appellants, however, do not provide an adequate explanation
regarding any factual showing in the specification referred to in
the briefs to support a conclusion of unexpected advantages.
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