Appeal No. 2007-1140
Application No. 10/753,729
Appellants also argue that “Cuthbertson teaches that a linker moiety is
responsible for modifying the pharmacokinetics or blood clearance rates.”
(Reply Br. 4.) But Cuthbertson also teaches that the linker moiety can be
present without the reporter (“X8 . . . is NH2 or absent”) (Cuthbertson 9:
10-15). Thus, we do not agree that this difference distinguishes the claimed
invention from Cuthbertson.
Secondary considerations
“One way for a patent applicant to rebut a prima facie case of
obviousness is to make a showing of ‘unexpected results,’ i.e., to show that
the claimed invention exhibits some superior property or advantage that a
person of ordinary skill in the relevant art would have found surprising or
unexpected.” In re Soni, 54 F.3d 746, 750, 34 USPQ2d 1684, 1687 (Fed.
Cir. 1995).
An applicant cannot prove unexpected results with attorney
argument and bare statements without objective evidentiary
support. See In re Lindner, 59 C.C.P.A. 920, 457 F.2d 506, 508
(CCPA 1972); In re Geisler, 116 F.3d 1465 (Fed. Cir. 1997)
(“attorney argument [is] not the kind of factual evidence that is
required to rebut a prima facie case of obviousness”); In re
Soni, 54 F.3d 746, 750 (Fed. Cir. 1995) (“It is well settled that
unexpected results must be established by factual evidence.
Mere argument or conclusory statements ... [do] not suffice.”)
(quoting In re De Blauwe, 736 F.2d 699, 705 (Fed.Cir.1984)).
CFMT Inc. v. Yieldup Inter’l Corp., 349 F.3d 1333, 1342, 68 USPQ 2d
1940, 1947 (Fed. Cir. 2003).
In this case, we find no evidentiary support for Appellants’ statement
that the results obtained with “present invention” are “unexpectedly” better
and “superior” when compared to Cuthbertson’s compounds (Substitute Br.
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