Appeal No. 2004-0109
Application 09/324,549
through 8 is more significant than the evidence with respect to Aging Condition 1. See In re
Nolan, 553 F.2d 1261, 1267, 193 USPQ 641, 645 (CCPA 1977).
However, there is no basis in the record to distinguish between the results obtained
between claimed alloys B and C and prior art alloy D in Aging Conditions 2 through 8, and as we
discuss above, the results reported in specification FIG. 1 consistently show little difference
between these three alloys. Indeed, the virtual identity in performance between claimed alloy B
and prior art alloy D is remarkable, particularly in view of the numerous differences in the
amounts of the elements between these two alloys that we found above, which differences do not
support appellants’ contention that the evidence represents the difference in the amount of
lithium per se contained by the alloys. See In re Dunn, 349 F.2d 433, 439, 146 USPQ 479, 483
(CCPA 1965) (“[W]e do not feel it an unreasonable burden on appellants to require comparative
examples relied on for non-obviousness to be truly comparative. The cause and effect sought to
be proven is lost here in the welter of unfixed variables.”); see also In re Heyna, 360 F.2d 222,
228, 149 USPQ 692, 697 (CCPA 1966). In this respect, we found above (see pp. 7 and 9) that
the references would have suggested to one of ordinary skill in this art that the properties of the
aluminum lithium alloys taught therein, including a TYS of about 80 ksi, can be achieved by
varying amounts of elements, including teachings specific to Li and Cu, along with using the
disclosed processing methods, and one of ordinary skill in this art would not have found in such
teachings the direction to use at least 0.5 wt. % or more of lithium as appellants’ contend (brief,
page 16).
Accordingly, we find that there is little, if any, evidence supporting appellants’ position
that the evidence establishes that the differences in result between the alloys reported in
specification FIG. 1 are “significant” and patentably distinguish the claimed aluminum lithium
alloys encompassed by appealed claim 19 over the aluminum lithium alloys in the groups of
alloys set forth above from Rioja ‘792 and ‘859. Lindner, supra (“This court has said . . . that
mere lawyers’ arguments unsupported by factual evidence are insufficient to establish
unexpected results. [Citations omitted.]”).
Therefore, we find that the evidence relied on as a whole, viewed either in specification
FIG. 1 or brief Figure 1a, is evidence of obviousness rather than nonobviousness.
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