Appeal No. 20006-0324
Application No. 10/095,154
the art. Conclusory statements of counsel cannot take the place of evidence lacking in
the record.
Furthermore, as we see it, appellants’ comparative data is not commensurate
with the scope of the claims. In this regard, we note that appellants chose a single
polyol with a molecular weight (Mn) of about 4000 g/mol as representative of their
polyether polyol component (examples 1 and 2); whereas the claimed lower limit of Mn
is 3,500 g/mol. Additionally, the closest prior art reference (Kaufhold) is said by
appellants to exemplify the use of a polyol having a molecular weight as high as 2,250;
whereas appellants’ comparative example 3 (presumably representative of the Kaufhold
TPU polymers) employs a polyol having a molecular weight of only about 2000 g/mol.
Thus, the variation in polyol molecular weight used in appellants’ examples is
significantly greater than the variation between appellants’ claims and the examples of
Kaufhold.
With regard to appellants’ other comparative examples, e.g., comparative
examples 1-2 and 4, we merely note that these involve additional unfixed variables, and
are not represented by appellants to be indicative of the closest prior art (Kaufhold).
Thus, they appear to be of even lesser significance than comparative example 3.
For the foregoing reasons, the evidence of nonobviousness relied upon by
appellants does not outweigh the evidence of obviousness adduced by the examiner.
Accordingly, the decision of the examiner is affirmed.
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