Appeal 2007-0128
Reexamination Control 90/006,208
Patent 5,573,648
represented an advance due to the portability, accuracy and reliability of the
licensed CO sensor. Counsel stated that the success of the product was due in part
to this advancement over the prior art. Yet, the features identified by Atwood=s
counsel, portability, reliability and accuracy, are not explicitly or implicitly
required by the claims on appeal. We find that Atwood has failed to establish that
the success of the licensed product was due to the novel features present in all the
appealed claims, i.e., use of proton-electron mixed conductive material electrodes
in a gas sensor.
vi. Alleged Advantages over the Prior Art are not Supported by
Credible Evidence
Atwood=s Reply Brief states that by using the sensors of the present
invention, Abattery life can be greatly prolonged, an advantage that the Dempsey et
al. sensor cannot achieve.@ (Reply Brief, p. 9). Atwood requests that this
secondary consideration be properly considered. (Id.).
Atwood=s attorney argument as to potential advantages that may be
achieved by the claimed subject matter is not supported by credible evidence.
Specifically, we do not credit Atwood=s attorney argument as establishing that the
claimed subject matter possesses unexpected properties or results as compared to
the prior art. Rohm & Haas Co. v. Brotech Corp., 127 F.3d 1089, 1092, 44
USPQ2d 1459, 1462 (Fed. Cir. 1997)(Nothing in the rules or in jurisprudence
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