Appeal No. 2006-2694
Application No. 09/910,968
Regarding claim 9, Appellants argue that, while continuous operations
are well known, “the use of a continuous operation wherein the continuity
includes the recycling of a nitroxyl inhibitor presents special problems with
regard to effectiveness that one does not encounter with other inhibitors,
such as dinitrophenols.” (Br. 7.) Appellants argue that neither Arhancet nor
Higgins, alone or in combination, suggests how to overcome these problems.
(Br. 7.)
We do not find this argument persuasive. Appellants do not cite any
evidence of record to support their argument, and our review of Arhancet
and Higgins does not provide any suggestion that the teachings of the
references cannot be combined in the manner set forth in the rejection.
Thus, Appellants’ argument regarding claim 9 is not based on any factual
evidence of record. It is well established that argument by counsel cannot
take the place of evidence. In re Cole, 326 F.2d 769, 773, 140 USPQ 230,
233 (CCPA 1964); In re Geisler, 116 F.3d 1465, 1471, 43 USPQ2d 1362,
1365 (Fed. Cir. 1997).
Regarding claim 18, Appellants urge that “[i]n the real world, where
economics is a supreme consideration, scientists and engineers don't go
around looking for ways to make commercial processes more complex in the
absence of countervailing benefits that make the added cost of the more
complex system acceptable.” (Br. 8.) Thus, Appellants argue, in view of
Arhancet’s teaching of the use of a single nitroxyl compound, the person in
charge of a styrene purification process would not have been motivated “to
simply throw in a second or third nitroxyl compound, unless he was aware
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