Appeal No. 2005-0084
Application No. 09/835,726
[t]he photomicrographs of record in this application,
and enclosed with this Appeal Brief for the convenience
of the Board, clearly show that the vent opening formed
by removing material from the base wall of the
container is structurally different from a vent opening
that would be formed according to Thomas by merely
tearing the base of the outer shell along the parting
line.
(page 8 of principal brief, second paragraph).
With emphasis on the fact that it is appellant’s burden to
convincingly demonstrate that the claimed multilayer container
with its vent opening, as a whole, is patentably distinct and
nonobvious over the multilayer container of Thomas, as a whole,
it is our judgement that appellant has fallen considerably short
in shouldering this burden. The photomicrographs submitted by
appellant are not in declaration or affidavit form, and,
therefore, are considered to be no more than argument and of
little probative value. See In re Greenfield, 571 F.2d 1185,
1188, 197 USPQ 227, 229 (CCPA 1978); In re Mehta, 347 F.2d 859,
866, 146 USPQ 284, 289 (CCPA 1965). Furthermore, the
photomicrographs fail to present a comparison with multilayer
containers within the scope of the appealed claims and multilayer
containers fairly taught by Thomas. As stated by appellant,
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