Appeal No. 2004-0149
Application No. 09/803,612
Appellants argue that WO ‘628 and WO ‘787 disclose peroxygen
bleach or peroxy-based or -generating bleach systems as essential
elements (Brief, page 6). This argument is not well taken for two
reasons. First, both references teach the alternative use of
molecular oxygen as a bleach system and thus are not limited to the
peroxy-generating system (see WO ‘787, abstract; page 1, ll. 15-17;
page 4, ll. 7-9; WO ‘628, page 10, l. 36-page 11, l. 1). Second,
the claims do not exclude peroxy-based bleaching systems, including
up to 50% by molar weight of peroxy-based bleaches (Answer, page 4,
citing the specification, page 23, ll. 20-30; see footnote 2
above).
Appellants argue that the references do not disclose the use
of atmospheric oxygen, and the term “molecular oxygen” taught by
the references would not be interpreted by those skilled in the
laundry art as the same as “atmospheric oxygen” or even air (Brief,
pages 6-11). This argument is not persuasive. Appellants have not
proferred any objective evidence to support their argument. See In
re Scarborough, 500 F.2d 560, 566, 182 USPQ 298, 302 (CCPA
1974)(Attorney’s arguments are generally held to be insufficient to
take the place of evidence or expert testimony). With regard to
enablement (Brief, page 8), appellants have not shown that the
alternative bleaching system using molecular oxygen, taught by WO
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