Appeal No. 2005-1943
Application No. 09/091,508
fluid flow.
Hence, we disagree with appellants’ position, discussed
supra.
Appellants also argue that Pall ‘923 does not indicate the
length of the hollow separation arrangement or its interior
diameter. Appellants argue that the specification at page 46,
lines 2-6, indicates that increasing the length without
increasing the diameter may result in an undesirable filter
support core differential. Appellants argue that neither Pall
‘012 or any other cited reference suggests that the desirability
of increasing the interior diameter in combination with
increasing length.2 Brief, page 5.
In response, on page 13 of the answer, the examiner states
that these are result effective variables which would be
determined based on the space availability for filter
installation and the filter capacity required. We agree.
We note that absent evidence of criticality3, as in the present
case, we agree with the examiner’s prima facie case of
obviousness in this regard.
2 On page 14 of the answer, the examiner responds that claim 1 does not
positively recite a structural connection between length and diameter
of the packs. We agree.
3 Mere attorney argument is not found persuasive. That is, mere
attorney argument is not the kind of factual evidence that can rebut
the prima facie case of obviousness. See In re Wood, 582 F.2d 638,
642, 199 USPQ 137, 140 (CCPA 1978); In re Lindner, 457 F.2d 506, 508,
173 USPQ 356, 368 (CCPA 1972)(“mere lawyers’ arguments unsupported by
factual evidence are insufficient to establish unexpected results.”).
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