Appeal No. 2006-1038
Application No. 10/138,994
Finally, the appellant contends that, even if a prima facie
case of obviousness exists, the rejection still would not be
proper because "[t]he composite structures of the present
invention have improved properties . . ." (Brief, page 9).
However, the appellant has not explained with any reasonable
specificity why the asserted "improved properties" (id.) are
considered to be unexpected in light of the applied references
and commensurate in scope with appealed claim 1, thereby evincing
nonobviousness. More importantly, the Evidence Appendix filed by
the appellant pursuant to 37 CFR § 41.37(c)(1)(ix) unambiguously
reflects that no evidence is "relied upon by appellant in the
appeal" (§ 41.37 at (ix)). Under these circumstances, we
consider the appellant to have advanced on this appeal argument
but not evidence in opposition to the examiner's § 103 rejection.
In summary, it is our ultimate determination that the
reference evidence adduced by the examiner establishes a prima
facie case of obviousness which has not been successfully
rebutted by the appellant with argument or evidence of
nonobviousness. See In re Oetiker, 977 F.2d 1443, 1444,
24 USPQ2d 1443, 1444 (Fed. Cir. 1992). As a consequence, we
hereby sustain the examiner's § 103 rejection of all the appealed
claims as being unpatentable over Irwin in view of Holeschovsky.
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