Appeal 2006-2094
Application 10/339,797
Examples, other portions of the examples that were not referenced by the Examiner
list other materials that could easily be interpreted to be present in the reaction
mixtures produced in Doyle’s Examples” (Br. 3). Appellants further argue that the
Examples contain large volumes of toluene and that there is no discussion of any
separation in any of the Examples (Br. 3). Appellants’ arguments are not
persuasive. Claims 35 and 43 employ the transitional term “comprising” which
indicates that the claims include other components that are not specified. The
Examiner has identified 1-pentene and 1-heptane as the two most prominent linear
alpha olefins species present in the disclosed compositions. Appellants have not
challenged the Examiner’s findings. Nor have Appellants presented evidence to
support their assertion that other components, including toluene, are present to alter
the percentage of olefins in the compositions described by Doyle.2
Regarding claim 43, Appellants repeat their arguments regarding Doyle’s
Examples as identified in Tables 1 and 2 (Br. 7). In addition, Appellants argue that
the total olefins having C2 and C3 branching is equal to 6.099% which is outside
the scope of claim 43 (Br. 8). This argument is not persuasive because the
Examiner has provided calculations on the amount of branching accruing at the C2
position which falls within the scope of the claimed invention (Answer 7).
Appellants have not challenged the Examiner’s calculation in response briefing.
2 This is especially true in this case because the reference to Doyle is assigned to
the Shell Oil Co., which has been identified as the real party in interest of the
present Application (Br. 1). Unsupported arguments of counsel cannot take the
place of evidence. See In re Pearson, 494 F.2d 1399, 1405, 181 USPQ 641, 646
(CCPA 1974).
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