Appeal No. 2006-0369 Παγε 12
Application No. 10/225,395
attorney argument or conjecture and is not substantiated with any
persuasive evidence. Unsupported arguments of counsel simply
cannot take the place of evidence. See In re Pearson, 494 F.2d
1399, 1405, 181 USPQ 641, 646 (CCPA 1974).
Moreover, to the extent those assertions by appellants may
be considered to raise an issue of non-analogous art, we note
that the test of whether a reference is from an analogous art is
first, whether it is within the field of the inventor's endeavor,
and second, if it is not, whether it is reasonably pertinent to
the particular problem with which the inventor was involved. See
In re Wood, 599 F.2d 1032, 1036, 202 USPQ 171, 174 (CCPA 1979).
A reference is reasonably pertinent if, even though it may be in
a different field of endeavor, it is one which because of the
matter with which it deals, logically would have commended itself
to an inventor's attention in considering the inventor’s problem.
See In re Clay, 966 F.2d 656, 659, 23 USPQ2d 1058, 1060-61 (Fed.
Cir. 1992).
As explained by the examiner (answer, pages 16 and 17):
Valaitis is seeking to provide a more efficient means
for cross-linking the EPDM material when compared with:
(1) sulfur cross-linking which leaves the sheeting non-
uniform and with low heat aging resistance ..., and (2)
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