Appeal 2007-1905
Reissue Application 10/931,249
Patent 6,444,720 B1
1 concerning a relationship between the amount of unsaturation in the polyol
2 and the open-cell content of a rigid foam made with the polyol. Whether
3 Bayer can refile its case and present claims which are limited to its discovery
4 is not a matter we need to address at this time.
5 Further not overlooked is Bayer's argument that one skilled in the art
6 "would not be motivated to use Heuvelsland for the purpose of improving
7 foam color because the foam insulation would not be visible during use."
8 Appeal Br. 7. Bayer's argument is based solely on a statement of counsel. A
9 statement of counsel cannot take the place of evidence in the record. In re
10 Cole, 326 F.2d 769, 773, 140 USPQ 230, 233 (CCPA 1964). The record
11 does not establish that buyers of foam (particularly consumers for home
12 insulation uses) would not be interested in color prior to installation of the
13 foam in its final environment. Compare In re Webb, 916 F.2d 1553, 16
14 USPQ2d 1433 (Fed. Cir. 1990) (concern of appearance of hip prosthesis not
15 precluded merely because prosthesis is ultimately "hidden" from view).
16 Contrary to the argument of counsel, the evidence in the record—
17 Heuvelsland—suggests that color and other properties are relevant.
18 Still further not overlooked are Bayer's arguments directed to the use
19 of its "preferably preferred" tertiary amine catalyst (claim 10). The
20 "preferably preferred" tertiary amine is a known catalyst for making
21 polyurethanes. No unexpected result has been established based on the use
22 of the amine. On this record, Bayer appears to have used a known catalyst
23 for its intended purpose to achieve an expected result. The facts are similar
24 to those in Leapfrog Enterprises, Inc. v. Fisher-Price, Inc., ___ F.3d ____,
25 82 USPQ2d 1687, 2007 WL 1345333 (Fed. Cir. May 9, 2007) (the reasons
18
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