Appeal No. 2006-0349 Page 4
Application No. 10/293,727
According to the examiner, it would have been obvious to one of ordinary skill in the art
at the time appellants’ invention was made to use R-245fa as the working fluid in Amir’s system
for the purpose of achieving the appropriate work output due to the special characteristics of that
working fluid (answer, p. 4). Additionally, the examiner reasons that one skilled in the art would
have been motivated to use a refrigerant such as R-245fa because it is more environmentally
friendly, even if its use in the Amir system may result in a reduction in efficiency (answer, p. 9).
Hanna’s identification of R-245fa as a suitable working fluid because of its recognized
attractive thermodynamic properties, and relative environmental friendliness, establishes a
reasonable basis to support the examiner’s conclusion that its use in a Rankine-cycle power plant
of the type taught by Amir would have been obvious to one of ordinary skill in the art. As
evidenced by the discussion of refrigerants by Hanna noted above, refrigerants are selected not
solely on the basis of attractive thermodynamic properties or efficiency, but also on the basis of
whether they are objectionable or banned for environmental reasons.
The appellants’ brief, at pages 4 and 5, provides argument that the Amir turbine concept
is not compatible with R-245fa because it requires the diameter of the axial first stage rotor to be
larger than the inlet diameter of the second stage radial inflow rotor, thereby limiting efficient
turbine operation to pressure ratios less than those required in typical organic Rankine-cycle
applications when using this fluid. The appellants, however, have not supported this assertion
with evidence or a complete technical explanation as to why this is necessarily the case. An
attorney's arguments in a brief cannot take the place of evidence. In re Pearson, 494 F.2d 1399,
1405, 181 USPQ 641, 646 (CCPA 1974). Moreover, the appellants have not offered any
comparison between the efficiency attainable using the disclosed Freon in the Amir system and
that attainable using R-245fa in the Amir system in place of the Freon or asserted that any
resulting decrease in efficiency is sufficiently great as to outweigh the social pressures for
improving the environment (see reply brief, p. 2).
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