Appeal No. 2005-0931
Application 10/006,679
anticipation and non-anticipation and all of the evidence of obviousness and nonobviousness
based on the record as a whole, giving due consideration to the weight of appellants’ arguments
in the brief. See generally, Spada, 911 F.2d at 707 n.3, 15 USPQ2d at 1657 n.3; In re Oetiker,
977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992); In re Piasecki, 745 F.2d 1468,
1472, 223 USPQ 785, 788 (Fed. Cir. 1984).
We agree with the examiner’s finding that the arguments submitted by appellants
alleging that certain disclosure in the specification and associated drawing represent the thin film
magnets of Araki (brief, pages 3-4) have not been established by appellants to do so (answer,
pages 5-7). Indeed, we find no mention of Araki anywhere in the written description in
appellants’ specification, and it is well settled that arguments not supported by evidence are
entitled to little, if any, weight. See In re Payne, 606 F.2d 303, 315, 203 USPQ 245, 256 (CCPA
1979); In re Lindner, 457 F.2d 506, 508, 173 USPQ 356, 358 (CCPA 1972).
Appellants submit that Araki describes “a physical deposition process for depositing a
thin film magnet [that] employs a plasma” and contends that, as illustrated in specification
FIG. 18, “the temperature of the front side of the substrate, which is exposed to the plasma,
substantially fluctuates” even though “the temperature at the rear side of the substrate may be
relatively constant,” whereas if “the temperature of the front surface of the substrate is
maintained essentially constant,” the “thin film magnet structured produced is the structure
illustrated in” specification FIG. 3 (brief, pages 4-5). The examiner contends that appellants
“have not established that the ‘Conventional’ process in [FIG. 18] is, in fact, Araki’s process,”
and therefore, the argument is entitled to little, if any, weight (answer, page 7).
We are of the opinion that the disclosure at page 18, ll. 4-20, of the specification would
support appellants’ argument if, as the examiner points out, it is established on the record that the
“conventional” process reflect therein is in fact a process taught by Araki wherein the substrate
temperature is not controlled. On the record as it stands on appeal, we find no disclosure of such
a “conventional” process in Araki. Indeed, the reference discloses “precise” control of substrate
temperature, particularly temperature ranges and illustrative samples run at a specific
temperature. Thus, appellants’ argument is entitled to little, if any, weight. See Lindner, supra
(“[M]ere conclusory statements in the specification and affidavits are entitled to little weight
when the Patent Office questions the efficacy of those statements. [Citations omitted]”);
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