Appeal No. 2005-1934 Page 6
Application No. 10/022,357
550°C because temperatures above 600°C undesirably oxidize the base metal (Brief, p. 6). As
noted by the Examiner, Appellants’ assertion contradicts with what is taught in Beer (Answer, p.
3). Appellants, however, cite no particular prior art reference or other evidence indicating that
those of ordinary skill in the art would, in fact, not practice the sintering at the upper levels of the
400-650°C range specifically suggested by Beer, particularly in the embodiment where there is a
metal oxide layer between the metal base and the RuO2 layer as taught in Example 6 of Beer.
We note that attorney argument is not evidence. In re Lindner, 457 F.2d 506, 508, 173 USPQ
356, 358 (CCPA 1972). The evidence as a whole supports the position of the Examiner.
Appellants argue that Beer does not mention the TiO2-screening layer of the claim (Brief,
p. 8). This argument is not convincing because Beer describes including a TiO2 layer between
the titanium support and the oxide anode of RuO2.1 It is reasonable to conclude that the TiO2
layer of Beer would perform the screening function of the claim as found by the Examiner due to
the similarities of the materials and processing of that layer to Appellants’ TiO2-screening layer
(Office Action of April 6, 2004, p. 4).
Much of Appellants’ argument is directed to differences between an anode with a TiO2-
screening layer and one without that layer. We, like the Examiner, find those arguments
unpersuasive because they ignore the teaching in Beer of an intervening TiO2 layer (Answer, p.
4). Beer represents the closest prior art. Therefore, the correct comparison here is between
1The listing of only four metal oxides for the metal oxide layer describes the use of each
of those materials including TiO2 to one of ordinary skill in the art.
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