Appeal No. 2004-2352
Application No. 09/854,419
application of photochromic layers. However, we agree with the
examiner that the collective teachings of the references applied
against appellants’ claims suggest a “laminable” photochromic
element, as claimed. Therefore, whatever problems may exist when
applying a polarizing layer are of no moment when considering the
application of a photochromic layer.
Appellants rely upon the comparative data presented on pages
21-24 of their specification to demonstrate the superior
performance obtained by using a polyester urethane as a binder
component for a photochromic material as compared to use of a
polyether urethane. In our opinion, the evidence relied upon by
appellants does not overcome the prima facie case of obviousness
for the following reasons:
First of all, the appellants do not aver, nor have they
otherwise established, that the results they have presented in
their specification would have been unexpected. Attorney
argument to that effect in the brief is no substitute for
objective evidence lacking in the record.
Second, we agree with the examiner that the evidence relied
upon by the appellants is not commensurate with their claims
which are of broader scope. In this regard, we note that the
comparative testing conducted by the appellants apparently
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