Appeal 2007-2916
Application 10/225,502
fillers to have low aspect ratios. Argument of counsel cannot take the place
of evidence lacking in the record. Meitzner v. Mindick, 549 F.2d 775, 782,
193 USPQ 17, 22 (CCPA); see also In re Pearson, 494 F.2d 1399, 1405,
181 USPQ 641, 646 (CCPA 1974) (“Attorney’s argument in a brief cannot
take the place of evidence.”). Therefore, this argument is not persuasive of
Examiner error.
Secondly, Appellants argue that McCullough does not teach a
"balanced blend" of hBN powder and alumina "that has been determined to
provide the best compromise in order to maximize the thermal conductivity
of the resulting composition while also imparting the desired reduction in
abrasive properties of the composition" (Br. 10). In essence, the Examiner
responds that the amount of hBN powder vis-à-vis the amount of alumina is
a result effective variable and Appellants have failed to show any criticality
to using an equal amount of hBN and alumina fillers (Answer 6-7). Indeed,
it is well settled that optimization of a result effective variable is within
ordinary skill. In re Peterson, 315 F.3d 1325, 1330, 65 USPQ2d 1379,
1382-83 (Fed. Cir. 2003) (determining where in a disclosed set of percentage
ranges the optimum combination of percentages lies is prima facie obvious).
Finally, Appellants have not provided any evidence of unexpected results
due to use of a "balanced blend" of hBN powder and alumina fillers in the
claimed composition. Therefore, this argument is not persuasive of
Examiner error.
Lastly, Appellants argue that the specially formed hBN crystals of
Kawasaki would not disperse in the polymer base matrix of McCullough,
thereby, "completely defeating the teachings of the McCullough reference"
(Br. 11). Appellants appear to have mistaken the facts in Kawasaki being
11
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