Appeal No. 2007-0294 Page 7
Application No. 11/050,224
present in the composition. It does not attribute this “good” performance to the
presence of pre-emulsified PDMS as asserted by Appellants.
Appellants also contend that “the specification discloses that the pre-
emulsified form of polydimethylsiloxane improves the processability of the
particulate admixture of polydimethylsiloxane and clay.” Br. 7. “Processability,”
as we understand it, refers to the process which is used to produce the claimed
“solid particulate laundry detergent composition.” However, Appellants provide
no evidence that using pre-emulsified PDMS in the process of making the
detergent confers “a different property characteristic” on the final product, itself.
Reply Br. 3.
Because the Examiner reasonably presumed that the PDMS is present in the
laundry detergent in the same form present in Brockett’s composition, the burden
shifted to Appellants to provide evidence to overcome this presumption. We can
find no evidence in the record before us that the claimed particulate detergent
contains pre-emulsified PDMS. There is also no evidence that, when pre-
emulsified PDMS is used to prepare a solid particulate detergent, the final product
is different from the detergent described by Brockett. Arguments of counsel
cannot take the place of evidence lacking in the record. Estee Lauder Inc. v.
L'Oreal, S.A., 129 F.3d 588, 593, 44 USPQ2d 1610 (Fed. Cir. 1997). Accordingly,
we find that Appellants have not provided adequate evidence to rebut the
Examiner’s rejection. We affirm the rejection of claim 1. Claims 2-9, 12-16, and
19-23, fall together with claim 1.
Claim 10
Claim 10 is dependent on claim 1 and further requires that the surfactant
comprise: a) a C10-13 alkyl benzene sulphonate and b) a C8-18 alkyl sulphate in a
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