Appeal No. 2004-1696
Application 09/988,181
court has said . . . that mere lawyers’ arguments unsupported by factual evidence are insufficient
to establish unexpected results. [Citations omitted.]”); In re Hoch, 428 F.2d 1341, 1343-44, 166
USPQ 406, 409 (CCPA 1970) (evidence must provide an actual comparison of the properties of
the claimed compositions with compositions of the reference).
Turning now to the ground of rejection of appealed claim 6, we find that not only does
appellant state that this claim stands “together” with appealed claim 1 (brief, page 4), but
appellant does not present any additional substantive arguments specific to this claim which is
rejected over the combined teachings of Haltenhoff and the other applied references (id., page 7).
Accordingly, based on our consideration of the totality of the record before us, we have
weighed the evidence of obviousness found in Haltenhoff alone and as combined with the other
applied references with appellant’s countervailing evidence of and argument for nonobviousness
and conclude that the claimed invention encompassed by appealed claims 1 through 8 would
have been obvious as a matter of law under 35 U.S.C. § 103(a).
The examiner’s decision is affirmed.
No time period for taking any subsequent action in connection with this appeal may be
extended under 37 CFR § 1.136(a).
AFFIRMED
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