Appeal No. 2006-1654
Application No. 09/929,488
Blauwe, 736 F.2d at 705, 222 USPQ at 196 (“It is well settled that
unexpected results must be established by factual evidence. Mere argument
or conclusory statements in the specification does not suffice.”) citing In re
Lindner, 457 f.2d 506, 508, 173 USPQ 356, 358 (CCPA 1972) [emphasis
added]. We note that the Court of Appeals for the Federal Circuit has
further determined that arguments of counsel cannot take the place of
evidence in the record. In re Geisler, 116 F.3d at 1471, 43 USPQ2d at 1365
[emphasis added].
In the instant case, we note that appellant has failed to provide a
showing supported by an appropriate affidavit or declaration demonstrating
that the claimed range of 0.5 to 4.0 degrees of the second alignment layer is
critical and that it achieves unexpected results relative to the prior art range
disclosed by Baur. In particular, we note that there is no evidence appendix
contained within the brief. See 37 C.F.R. §§ 41.37(c)(1)(ix) and 41.33(d).
Therefore, we conclude that appellant’s assertions of unexpected results
constitute mere argument and conclusory statements in the specification
that cannot establish patentability. Accordingly, we will sustain the
examiner’s rejection of representative claim 1 for essentially the same
reasons argued by the examiner in the answer. Because we have
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