Appeal No. 2007-0623 Page 7
Application No. 10/380,591
teachings of Hartmann, Burgess and Vorozhtzov to arrive at a process of
producing the formula I compound of Burgess, using the process of Hartmann,
and formula I and IX compounds of Hartmann and Vorozhtzov. 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, 1615 (Fed. Cir.
1997).
On reflection, we find the preponderance of evidence on this record
supports a finding that a person of ordinary skill in the art would have been
motivated to react a compound of formula V with a compound of formula IX to
produce a compound of formula I. Accordingly, we find no error in the
Examiner’s prima facie case of obviousness. Therefore, we affirm the rejection
of claim 1 under 35 U.S.C. § 103 as being unpatentable over the combination of
Hartmann, Burgess, Vorozhtzov and Lindley. As discussed above claims 2-11
fall together with claim 1.
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 CFR § 1.136(a).
AFFIRMED
)
Toni R. Scheiner )
Administrative Patent Judge )
) BOARD OF PATENT
)
Donald E. Adams ) APPEALS AND
Administrative Patent Judge )
) INTERFERENCES
)
Lora M. Green )
Administrative Patent Judge )
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