Appeal No. 2007-0360 Page 8
Application No. 11/050,001
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 affirm the rejection of claim 1. Since separate arguments
for patentability were not set forth for claims 2-9, 12-16, and 19-24, these claims
fall together with claim 1.
Claim 10
Claim 10 is dependent on claim 1 and further requires that the surfactant
comprise an alkyl benzene sulphonate and alkyl sulphate. Both these surfactant
compounds are disclosed in Brockett. Brocket at 18, ll. 1-5. The Examiner argues
that Brockett exemplifies two different surfactants, but not the same “anionics”
recited in claim 10. Answer 6. However, the Examiner asserts “that, where both
anionics are disclosed as suitable, the person of ordinary skill in the surfactant art
could formulate compositions as recited by appellant by working within the
general teachings of the reference.” Id.
Appellants challenge the rejection, arguing that Brockett
not only fail[s] to disclose the anionic detersive surfactants recited in
claim 10, but fail[s] to disclose the use of such anionic detersive
surfactants together in a detergent composition. The Examiner’s
assertion that where combinations of anionics are disclosed as
suitable, a person of ordinary skill in surfactant art could formulate
compositions as recited by Appellant by working within the general
teachings of the reference, is “hindsight recognition or at best . . .
obvious to try”, In re Geiger, 2 U.S.P.Q.2d 1276, 1278 (C.A.F.C.
1987). (Reply Br. 5.)
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