Appeal No. 2005-1407
Application No. 09/978,510
in the art would not have expected the use of low density fuels
in high pressure common rail engines to result in a smaller power
loss as compared to other diesel engines (brief, page 5). The
examiner, however, has submitted evidence which, the examiner
argues, indicates that high pressure common rail engines will
perform better than common diesel engines, regardless of the type
of fuel used in the engines (answer, p. 3). Appellants have not
taken differences which exist between high pressure common rail
engines and common diesel engines into account and submitted
evidence which shows that regardless of those differences, one of
ordinary skill would have expected the power loss resulting from
the use of low density fuels in high pressure common rail engines
to have fallen within the range of Figure 1. Appellants have
merely provided attorney argument, and such argument cannot take
the place of evidence. See In re De Blauwe, 736 F.2d 699, 705,
222 USPQ 191, 196 (Fed. Cir. 1984); In re Payne, 606 F.2d 303,
315, 203 USPQ 245, 256 (CCPA 1979); In re Greenfield, 571 F.2d
1185, 1189, 197 USPQ 227, 230 (CCPA 1974).
Moreover, appellants have not provided a side-by-side
comparison of the claimed invention with the methods used to
obtain the data in Figure 1 because appellants have not shown
that the method used to measure engine performance in Figure 1 is
the same method used by appellants to measure engine performance.
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