Appeal No. 2004-0109
Application 09/324,549
capable of attaining a yield strength (L) above 80 ksi and a fracture toughness above about 33
ksi√inch,” we find no evidence with respect to “fracture toughness” in either specification FIG. 1
or brief Figure 1a.
It is well settled that the burden of establishing the significance of data in the record with
respect to unexpected results rests with appellants, which burden is not carried by mere
arguments of counsel. See generally, In re Geisler, 116 F.3d 1465, 1470, 43 USPQ2d 1362,
1365-66 (Fed. Cir. 1997); In re Merck, 800 F.2d 1091, 1099, 231 USPQ 375, 381 (Fed. Cir.
1986); In re Longi, 759 F.2d 887, 897, 225 USPQ 645, 651-52 (Fed. Cir. 1985); In re Klosak,
455 F.2d 1077, 1080, 173 USPQ 14, 16 (CCPA 1972); In re Lindner, 457 F.2d 506, 508,
173 USPQ 356, 358 (CCPA 1972); In re D’Ancicco, 439 F.2d 1244, 1248, 169 USPQ 303, 306
(1971). Appellants have not carried this burden on this record.
Appellants’ reliance on the data reported for Alloys A, B and C for Aging Condition 6 is
misplaced because alloy A contains no Li and accordingly, evidence based thereon vis-à-vis
aluminum lithium alloys B and C does not reflect the thrust of the rejection that the claimed
aluminum lithium alloys are obvious over the aluminum lithium alloys disclosed and claimed in
Rioja ‘792 and disclosed in Rioja ‘859, which is the closest prior art, as we discussed above. See
e.g., Baxter Travenol Labs., supra (“[W]hen unexpected results are used as evidence of
nonobviousness, the results must be shown to be unexpected compared with the closest prior art.
[Citation omitted.]”); In re Burckel, 592 F.2d 1175, 1179-80, 201 USPQ 67, 71 (CCPA 1979)
(the claimed subject matter must be compared with the closest prior art in a manner which
addresses the thrust of the rejection)..
The comparison of aluminum lithium alloys B and C with alloy D at Aging Condition 6
does reflect the thrust of the rejection because each of the alloys fall within the group of alloys
disclosed at col. 2, lines 62-66, of Rioja ‘792 and the two groups of alloys set forth above from
Rioja ‘859 in view of the 2.09 wt. % Cu in each of alloys B and C and the 2.0 wt. % Cu in alloy
D.
Appellants rely on a comparison between claimed alloys B and C and now “prior art”
alloy D as set forth for Aging Condition 1, the “T3 condition,” as well as for Aging Condition 6,
the “T8 condition,” shown in specification FIG. 1. We cannot subscribed to appellants’ position
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