Appeal 2007-1397
Application 10/375,238
and 1a and Examples 4 and 4a is unexpected in any respect, arguing only
that the former set of examples provide results that are “particularly
effective” and “quite exceptional relative to other experiments operating
with only one or even two of the aforementioned materials of the claimed
bleaching system,” and that the latter set of examples provide “good results.”
See above pp. 8-9. In this respect, it is well settled that unsupported
arguments of counsel are entitled to little, if any, weight. See, e.g., In re
Payne, 606 F.2d 303, 315, 203 USPQ 245, 256 (CCPA 1979); Lindner, 457
F.2d at 508, 173 USPQ at 358.
Moreover, we agree with the Examiner that even if it is held that the
evidence in the Specification based on one set of ingredients establishes
unexpected results with respect to synergy or otherwise, there is no evidence
that the same result would be exhibited by the myriads of claimed
compositions encompassed by claim 1, as we interpreted this claim above,
vis-à-vis those of the combined teachings of the two sets of applied
references. See, e.g., In re Kulling, 897 F.2d 1147, 1149-50, 14 USPQ2d
1056, 1058 (Fed. Cir. 1990); In re Clemens, 622 F.2d 1029, 1035-36,
206 USPQ 289, 295-96 (CCPA 1980); In re Greenfield, 571 F.2d 1185,
1189, 197 USPQ 227, 230 (CCPA 1978); Lindner, 457 F.2d at 508,
173 USPQ at 358 (“The affidavit and specification do contain allegations
that synergistic results are obtained with all the claimed compositions, but
those statements are not supported by any factual evidence other than that
limited amount of evidence discussed above. This court has said . . . that
mere lawyers’ arguments unsupported by factual evidence are insufficient to
establish unexpected results.” (citations omitted)).
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