Appeal No. 2003-1485
Application No. 09/885,086
already indicated supra that the examiner appropriately applied
the explicit teachings of the references.
Appellant additionally contends (Brief, page 7, and Reply
Brief, pages 3-4) that the references fail to disclose
appellant's unexpected advantages of "improved resistance to
deformation, and in turn, increased impedance stability over
conventional design cables." However, Dembiak teaches
elimination of slippage which one would expect would reduce
deformation. Further, for unexpected results to be given
substantial weight in the determination of obviousness, the
burden is upon appellant to show a nexus between the merits of
the claimed invention and objective evidence of unexpected
results. Ashland Oil, Inc. v. Delta Resins & Refractories, Inc.,
776 F.2d 281, 305 n.42, 227 USPQ 657, 673-674 n.42 (Fed. Cir.
1985), cert. denied, 475 U.S. 1017 (1986). Objective evidence of
unexpected results must be factually supported by an appropriate
affidavit or declaration to be of probative value. See In re De
Bauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984).
Arguments of counsel cannot take the place of evidence in the
record. In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718
(CCPA 1965). As appellant has provided no factual evidence to
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