Appeal 2007-2419
Application 10/681,413
1 one of ordinary skill in the art would have known how to use the Masahiko
2 adjustable roller 17 to adjust and achieve the desired tension in the belt and
3 therefore balance the forces between the supply reel and take-up reel (FF 19).
4 One of ordinary skill in the art would have known that placing pressure on
5 the belt in any location along the belt would effect the belt tension and
6 achieve the desired result, e.g., change the slip torque.
7 Applicants have not demonstrated whether the placement of the roller
8 along one side of the belt versus another is better or performs some new
9 function or achieves some unexpected result. To the extent applicants
10 maintain there is some new function, better performance or an unexpected
11 result, they must show so. In re Klosak, 455 F.2d 1077, 173 USPQ 14
12 (CCPA 1972). The showing must be clear and convincing. McClain v.
13 Ortmayer, 141 U.S. 419, 429 1891) (conclusive evidence need to show
14 invention performs some new and important function not performed by the
15 prior art); In re Heyna, 360 F.2d 222, 228, 149 USPQ 692, 697 (CCPA 1966)
16 (applicant required to submit clear and convincing evidence to support an
17 allegation of unexpected property). See also In re Passal, 426 F.2d 409, 412,
18 165 USPQ 702, 704 (CCPA 1970) and In re Lohr, 317 F.2d 388, 392, 137
19 USPQ 548, 550-51 (1963) (conclusive proof of unexpected results not
20 submitted by applicant).
21 We will not credit Applicants’ unsupported argument. Rohm & Haas
22 Co. v. Brotech Corp., 127 F.3d 1089, 1092, 44 USPQ2d 1459, 1462 (Fed.
23 Cir. 1997) (Nothing in the rules or in jurisprudence requires trier of fact to
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