Ex Parte IsogawaDownload PDFBoard of Patent Appeals and InterferencesDec 31, 200810337288 (B.P.A.I. Dec. 31, 2008) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte KAZUHIKO ISOGAWA ____________ Appeal 2008-5673 Application 10/337,288 Technology Center 3700 ____________ Decided: December 31, 2008 ____________ Before JAMES T. MOORE, Vice Chief Administrative Patent Judge, SALLY C. MEDLEY and MICHAEL P. TIERNEY, Administrative Patent Judges. MEDLEY, Administrative Patent Judge. DECISION ON APPEAL A. Statement of the Case SRI Sports Limited (“SRI”), the real party in interest, seeks review under 35 U.S.C. § 134(a) of a Final Rejection of claims 1-8. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Appeal 2008-5673 Application 10/337,288 2 SRI’s invention is a golf ball having a marking formed by an ink composition comprising a metal powder coated with resin and a pigment. (Spec. Abs., 3-4, 7-9). Representative claim 1, reproduced from the Claim Appendix of the Appeal Brief, reads as follows: A golf ball having a marking formed by applying an ink composition on the surface thereof, wherein the ink composition comprises metal powder coated with a resin on the surface thereof and a pigment as essential components. The Examiner relies on the following prior art in rejecting the claims on appeal: Kiyoshi et al. (“Kiyoshi”) JP 4007368 A Jan. 10, 1992 Kametani et al. (“Kametani”) JP 11114093 A April 27, 1999 The Examiner rejected claims 1-8 under 35 U.S.C. § 103(a) as unpatentable over Kametani and Kiyoshi. B. Issues Does SRI demonstrate that the Examiner erred in establishing a prima facie case of obviousness? Does SRI demonstrate that the claimed invention achieves unexpected results? C. Findings of Fact (“FF”) Kametani 1. Kametani describes marking a golf ball with an ink layer having a composition containing metallic powder. (Translation ¶¶ 0001, 0002, 0006-0009, 0011, 0012, 0024). Appeal 2008-5673 Application 10/337,288 3 2. Kametani describes that using an ink composition containing a pigment and a metallic powder could create a mark having an attractive appearance and durability. (Translation ¶ 0006). 3. Kametani’s golf ball cover material comprises an ionomer resin which is plasma surface treated and subsequently sprayed with a 2-liquid reaction type urethane clear coat paint following marking. (Translation ¶¶ 0030, 0033). Kiyoshi 4. Kiyoshi describes that in the prior art metallic pigments have been used in printing inks. (Translation 2). 5. Kiyoshi describes that in the prior art it is known that metallic coating films made with resin coated metallic pigments have superior properties of alkali and acid resistance. (Translation 2, 16). 6. Kiyoshi identifies the problem that coating films from metallic coating materials made with resin coated metallic pigments are inferior in film appearance, particularly gloss, to metallic pigments having no resin coating (i.e., untreated metallic pigments). (Translation 2). 7. Kiyoshi aims to provide resin coated metallic pigment composition which gives a metallic coating film appearance, particularly gloss, equal to or better than untreated metallic pigments. (Translation 2-3). 8. Kiyoshi describes absorbing a specific liquid compound in the resin coated metallic pigments prior to the coating film formation process to solve the problem. (Translation 3, 5). Appeal 2008-5673 Application 10/337,288 4 Definitions 9. A coating is defined as “a layer of a substance spread over a surface for protection or decoration; a covering layer.” THE AM. HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (4th ed. 2004). 10. A film is defined as “a thin covering or coating”. THE AM. HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (4th ed. 2004). SRI’s Specification 11. SRI’s Specification identifies that it is an object of the invention to provide a golf ball ink marking that has improved durability, lustrousness and weather and chemical resistance. (Spec. 1-4, 9). 12. SRI’s Specification identifies that the chemical resistance, such as acid and alkali resistance is improved by using resin coated metal powder. (Spec. 3-4, 9). 13. SRI’s golf ball cover for inventive examples 1 to 6 and comparative examples 1 to 3 is made of a combination of different ethylene- methacrylic acid copolymer ionomer resins (i.e., Hi-milan 1605, Hi- milan 1706 and Hi-milan 1707) and titanium oxide which is surface treated by sandblasting and subsequently coated with clear paint following marking. (Spec. 14-15). 14. SRI’s inventive examples 1 and 2 have a paste of aluminum powder coated with acrylic resin with an aluminum content of 47%, average particle diameter 11.5 μm and a thickness of 20 Ǻ. (Spec. 20). 15. SRI’s comparative example 3 has a paste of uncoated aluminum powder with an aluminum powder content of 50%, average particle diameter 10.5 μm and a thickness of 18Ǻ. (Spec. 20). Appeal 2008-5673 Application 10/337,288 5 C. Principles of Law Prima Facie Case of Obviousness [T]he examiner bears the initial [examination] burden, on review of the prior art or on any other ground, of presenting a prima facie case of unpatentability. If that burden is met, the burden of coming forward with evidence or argument shifts to the applicant. After evidence or argument is submitted by the applicant in response, patentability is determined on the totality of the record, by a preponderance of evidence with due consideration to persuasiveness of argument. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992) (citations omitted). Motivation to Combine In KSR, the Supreme Court rejected the rigid application of the “teaching suggestion or motivation” (TSM) test, instead favoring the “expansive and flexible approach” used by the Court. KSR Int’l Co. v. Teleflex Inc., 127 S.Ct. 1727, 1739 (2007). In an obviousness analysis, it is not necessary to find precise teachings in the prior art directed to the specific subject matter claimed because inferences and creative steps that a person of ordinary skill in the art would employ can be taken into account. Id. at 1741. Based on its precedent, the Court reaffirmed the doctrine that “[t]he combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” Id. at 1741. United States v. Adams, 383 U.S. 39, 40 (1966) is illustrative of the application of the doctrine, in which “[t]he Court recognized that when a patent claims a structure already known in the prior art that is altered by the mere substitution of one element for another known in the field, the combination must do more than yield a predictable result.” KSR at 1740-41. Appeal 2008-5673 Application 10/337,288 6 In KSR, the Supreme Court found that the Court of Appeals for the Federal Circuit erred by (1) “holding that courts and patent examiners should look only to the problem the patentee was trying to solve . . . ”; (2) assuming “that a person of ordinary skill attempting to solve a problem will be led only to those elements of prior art that are designed to solve the same problem . . .” and (3) concluding “that a patent claim cannot be proved obvious merely by showing that the combination of elements was ‘obvious to try.’” Id. at 1742. In addressing the errors of the court, the Supreme Court instructed that “[i]n determining whether the subject matter of a patent claim is obvious, neither the particular motivation nor the avowed purpose of the [applicant] controls.” Id. at 1741-42. The Court further instructed that “[c]ommon sense teaches [] that familiar items may have obvious uses beyond their primary purposes, and in many cases a person of ordinary skill will be able to fit the teachings of multiple patents together like pieces of a puzzle. Id. at 1742. The Court stated that “[a] person of ordinary skill is also a person of ordinary creativity, not an automaton.” Id. at 1742. The Court instructed: [w]hen there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense. Id. at 1742. Hindsight Any judgment on obviousness is in a sense necessarily a reconstruction based on hindsight reasoning, but so long as it takes into account only knowledge which was within the level of ordinary skill in the art at the time the claimed invention was Appeal 2008-5673 Application 10/337,288 7 made and does not include knowledge gleaned only from applicant’s disclosure, such a reconstruction is proper. In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). Reasonable Expectation of Success “[T]he ultimate determination of obviousness ‘does not require absolute predictability of success.... [A]ll that is required is a reasonable expectation of success.’” Brown & Williamson Tobacco Corp. v. Phillip Morris Inc., 229 F.3d 1120, 1125 (Fed. Cir. 2000) (quoting In re O'Farrell, 853 F.2d 894, 903-904 (Fed. Cir. 1988)). Analogous Art “Two separate tests define the scope of analogous prior art: (1) whether the art is from the same field of endeavor, regardless of the problem addressed and, (2) if the reference is not within the field of the inventor's endeavor, whether the reference still is reasonably pertinent to the particular problem with which the inventor is involved.” In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004). Evidence Argument of counsel cannot take the place of evidence lacking in the record. Meitzner v. Mindick, 549 F.2d 775, 782 (CCPA 1977); see also In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Secondary Considerations - Unexpected Results “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 (Fed. Cir. 1995). Appeal 2008-5673 Application 10/337,288 8 “Evidence of secondary considerations, including evidence of unexpected results and commercial success, are but a part of the “totality of the evidence” that is used to reach the ultimate conclusion of obviousness. In some cases such evidence is the most probative of obviousness. The existence of such evidence, however, does not control the obviousness determination.” Richardson-Vicks Inc. v. Upjohn Co., 122 F.3d 1476, 1483 (Fed. Cir. 1997) (citations omitted). “[U]nexpected results must be established by factual evidence.” In re Geisler, 116 F.3d. 1465, 1470 (Fed. Cir. 1997). Statements that the test results were unexpected in light of the scientific knowledge at the time must be made in the application or through evidentiary submissions, such as an affidavit or declaration. See Id. at 1471. “[A]ttorney argument is insufficient to establish unexpected results.” Id. (quotations omitted). D. Analysis Independent claim 1 is representative and recites “[a] golf ball having a marking formed by applying an ink composition . . . wherein the ink composition comprises metal powder coated with a resin . . . and a pigment . . .”. (App. Br. 33). The Examiner finds that Kametani describes a golf ball having marks made from ink comprising metallic powder and pigment. (Final Rejection 2, Ans. 4). The Examiner does not rely on Kametani for describing the metallic powder coated with a resin, but instead finds that Kiyoshi describes a metallic powder coated with a resin. (Final Rejection 2, Ans. 4). The Examiner concluded that one of ordinary skill in the art would have modified Kametani with Kiyoshi to achieve the desired look of the golf ball. (Final Rejection 2, Ans. 4). The Examiner finds that the motivation to Appeal 2008-5673 Application 10/337,288 9 modify Kametani’s metallic powder is found in the Kiyoshi reference which states the advantage of the invention (i.e., resin coated metallic pigments with absorbed liquid compound) is to improve gloss and coating appearance. (Final Rejection 3, Ans. 6, 8). Teaching, Suggestion or Motivation to Combine the References SRI presents voluminous arguments asserting that the Examiner’s reasoning for combining the Kametani and Kiyoshi references is improper. SRI argues that the Examiner’s combination of the references is improper because (1) there is no teaching, suggestion or motivation to combine found in either of the references (App. Br. 11, 13-14, 15, 16; 30; Reply Br. 8); (2) the rationale of “achieving the desired look” is not found in either of the references (App. Br. 11-12, 13, 14, 25); (3) the Examiner improperly relies on the level of skill in the art to provide the suggestion or motivation to combine the references (App. Br. 13, 16-17, 22); (4) the Examiner’s rationale amounts to an “obvious to try” rationale (App. Br. 12); (5) the Examiner relies on “common knowledge” or “common sense” (App. Br. 13, 17, 22; Reply Br. 5); and (6) the Examiner uses hindsight reconstruction (App. Br. 17-18, 27-29). SRI’s arguments are unpersuasive. The Supreme Court has rejected the rigid application of the teaching, suggestion, and motivation test, (TSM) instead favoring an “expansive and flexible approach”. It is not necessary to find precise teachings in the prior art directed to the specific subject matter claimed because inferences and creative steps that a person of ordinary skill in the art would employ can be taken into account. The Court also left open the possibility that a claim be proven obvious by showing that the combination of elements was “obvious to try” or that one of ordinary of Appeal 2008-5673 Application 10/337,288 10 ordinary skill in the art can rely upon common sense to fit the teachings of multiple patents together like pieces of a puzzle. The Court also stated that a person of ordinary skill is a person of ordinary creativity, not an automaton. Further, the Court reaffirmed the doctrine that the combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results. Kametani describes a golf ball with a printed mark with an ink composition containing metallic powder. (FF1 1). Kametani further describes that using an ink composition containing a pigment and a metallic powder could create a mark having an attractive appearance and durability. (FF 2). Kiyoshi also describes that in the prior art metallic pigments have been used in printing inks. (FF 4). Kiyoshi describes that it is known that conventional resin coated metallic pigments have superior properties of alkali and acid resistance. (FF 5). Kiyoshi recognizes that resin coated pigments in metallic coating films are inferior in film appearance and gloss in comparison to untreated metallic pigments. (FF 6). Kiyoshi’s solution of absorbing a specific liquid compound in the resin coated metallic pigments prior to the coating film formation process gives a metallic coating film appearance, particularly gloss, equal to or better than untreated metallic pigments. (FFs 7-8). Upon reading Kiyoshi, one with ordinary skill in the art would appreciate that conventional resin coated metallic pigments impart superior acid and alkali resistance to film coatings. One with ordinary skill in the art would further appreciate upon reading Kiyoshi that the metallic coating film appearance, especially gloss, can be improved over conventional resin 1 FF denotes Finding of Fact. Appeal 2008-5673 Application 10/337,288 11 coated metallic pigments by absorbing a liquid compound in the resin coated metallic pigments. One with ordinary skill in the art would also appreciate that Kiyoshi’s terms “metallic coating films” and “printing inks” are used interchangeably since films and coatings are synonymous with layers and Kametani describes marking the golf ball with an ink layer containing metallic powder. (FFs 1, 4-5, 9-10). We therefore see no error in the Examiner’s conclusion that it would have been obvious to one with ordinary skill in the art to substitute either Kiyoshi’s conventional resin coated metallic pigments or the resin coated metallic pigments with absorbed liquid compound for the uncoated metallic powder in Kametani’s ink composition. Kiyoshi teaches that conventional resin coated metallic pigments have superior alkali and acid resistance and absorbing a liquid compound in the resin coated metallic pigments further improves film appearance, particularly gloss. (FFs 5-7). The modification of a known structure (i.e., ink having a metallic powder) to incorporate a known material (i.e., resin coated metallic powder) for its known and predictable purpose, (i.e., improved appearance and resistance to acidic and alkaline conditions) is obvious. SRI further argues that the motivation is lacking because the Kiyoshi and Kametani references do not address the same problem as SRI’s invention, nor describe or recognize the same advantages as achieved by SRI (i.e., golf balls with superior luster, durability and resistance to weather and adverse conditions). (App. Br. 27, 29). SRI also argues that the Examiner’s stated problem of a need for improved gloss and coating appearance does not take into account SRI’s problem. (App. Br. 27). SRI further argues that one with ordinary skill in the art would not refer to the Kiyoshi reference in attempt to Appeal 2008-5673 Application 10/337,288 12 achieve the claimed invention because Kiyoshi describes blending ink compositions into plastics. (App. Br. 26, Reply Br. 6-8). SRI’s arguments are unpersuasive. In determining whether the subject matter of a claim is obvious, neither the particular motivation nor the avowed purpose of the applicant controls. SRI also does not provide objective evidence to support its argument that one with ordinary skill in the art would not refer to the Kiyoshi reference in attempt to achieve the claimed invention. Moreover, it appears that SRI misapprehends the Kiyoshi reference when it makes the ink/plastic blend argument. Kiyoshi describes metallic coating films (i.e., inks) made with resin coated metallic pigments. (FFs 5-7). Additionally, SRI’s arguments that the Examiner uses hindsight are unpersuasive. A judgment of obviousness is proper if it only takes into account knowledge that was within the level of ordinary skill in the art at the time the invention was made and does not include knowledge gleaned from applicant’s disclosure. In this case, SRI does not argue, nor present evidence, that the Examiner utilizes knowledge from SRI’s disclosure. Here, the Examiner correctly relied on the knowledge of those skilled in the art and therefore the rejections were not based on hindsight. In conclusion, we do not find error in the Examiner’s combination of Kametani and Kiyoshi. Reasonable Expectation of Success The Examiner finds that one of ordinary skill in the art would assume a reasonable expectation of success based on Kiyoshi’s teachings of improved gloss and coating appearance if the teachings of Kiyoshi are implemented in Kametani’s invention. (Ans. 5). SRI presents voluminous arguments Appeal 2008-5673 Application 10/337,288 13 asserting that that the prior art does not establish that there would have been a reasonable expectation of success. (App. Br. 8, 10, 12-14, 21, 28; Reply Br. 7-8). For example, SRI argues that (1) Kiyoshi’s coating material used on plastic does not equate to using the same coating material on a golf ball since golf balls are subjected to different usages and different conditions (i.e., strong impact forces) (App. Br. 16, 29, 30; Reply Br. 6, 7); (2) there has not been a case in the golf ball art wherein a skilled artisan would try Kiyoshi’s technique and apply it to golf ball coatings (Reply Br. 7); and (3) Kiyoshi does not have any description regarding durability of its marking. (Reply Br. 7-9). As additional examples, SRI argues that one with ordinary skill in the art would not (1) readily understand that a pigment composition used for plastic would work on golf balls (App. Br. 30); (2) consider any common or conventional technique because any common or conventional understanding of what is normal in physics is not applicable to golf balls (Reply Br. 6); (3) consider the Kiyoshi reference because they have to consider whether Kiyoshi’s technique would endure such extreme deformations of the golf ball and strong impact forces (Reply Br. 7); and (4) would be in doubt about adopting Kiyoshi’s technique and would even dismiss the concept away because Kiyoshi’s technique is not so easily applicable to golf balls. (Reply Br. 7). SRI’s arguments are not persuasive. SRI does not present objective evidence to support its numerous arguments. Argument of counsel cannot take the place of evidence lacking in the record. Further, SRI’s argument that one with ordinary skill in the art would not understand that a pigment Appeal 2008-5673 Application 10/337,288 14 composition used for plastic would work on golf balls is not persuasive since Kametani and SRI’s Specification both describe golf ball covers made from plastic. (FFs 3, 10). Also, SRI’s argument that Kiyoshi does not describe the durability of its marking is not persuasive because Kiyoshi describes that the metallic coating films with resin coated metallic pigments have superior alkali and acid resistance (i.e., are more durable). (FF 5). In addition, SRI’s arguments are unpersuasive because the ultimate determination of obviousness does not require absolute predictability of success. All that is required is a reasonable expectation of success. SRI has not presented objective evidence to rebut the Examiner’s finding that one of ordinary skill in the art would assume a reasonable expectation of success based on Kiyoshi’s teachings of improved gloss and coating appearance. Teaching Away, Inoperability, Non-Analogous Art Based on misapprehensions of the Kiyoshi reference, SRI argues that Kiyoshi provides a teaching away, Kiyoshi is non-analogous art and the combination of Kametani with Kiyoshi leads to an inoperable device. (App. Br. 23-28, Reply Br. 8). SRI argues that the Kiyoshi’s teaching of coating metallic powder provides a teaching away because of the requirement that vegetable oil or animal oil absorb the metallic pigment. (App. Br. 23). SRI argues that Kiyoshi is non-analogous art because it does not describe using a coating on a golf ball, but instead describes using an absorbed resin-coated metallic pigment and describes coatings or inks that are blended into plastics. (App. Br. 27, 28; Reply Br. 8). SRI argues that the combination of Kiyoshi’s coated metal powder with Kametani’s golf ball would render Kametani’s golf ball inoperative or unsatisfactory for its intended purpose and destroy Kiyoshi’s intended function because Kiyoshi’s vegetable oil or Appeal 2008-5673 Application 10/337,288 15 animal oil would absorb the resin coated metallic pigment. (App. Br. 24- 26). SRI’s arguments are unpersuasive. Kiyoshi does not teach absorbing a metallic pigment with vegetable oil or animal oil. Instead, Kiyoshi describes absorbing a liquid compound in the resin coated metallic pigments. (FF 8). Additionally, SRI does not direct us to, and we can not find, where Kiyoshi describes blending inks into plastic. Instead, Kiyoshi describes making metallic coating films (i.e., inks) with resin coated metallic pigments. (FFs 5-8). Further regarding the analogous art argument, SRI has not addressed either of the tests for the scope of analogous art; whether Kiyoshi is from the same field of endeavor, regardless of the problem addressed, or if Kiyoshi is not within the field of the inventor's endeavor, whether Kiyoshi is still reasonably pertinent to the inventor’s particular problem. Additional Arguments SRI also argues that the resin coated metallic powder and pigment are essential to the claimed ink composition and vegetable oil or animal oil (i.e., the absorbed liquid compound) as required by Kiyoshi is not essential. (App. Br. 25). SRI’s argument is not commensurate in scope with the claim limitations. Claim 1 is an open-ended claim utilizing the transitional phrase “comprising” which does not exclude additional unrecited elements. Thus, additional components can be included in the ink composition and still remain within the scope of the claim. For all these reasons, SRI has not sufficiently demonstrated that the Examiner erred in concluding the subject matter would have been obvious based on the cited references. Appeal 2008-5673 Application 10/337,288 16 Secondary Considerations - Unexpected Results We now consider SRI’s evidence of nonobviousness. SRI argues that the claimed invention achieves unexpected results and is more than a predictable use of prior art elements according to their established functions. (App. Br. 18-20, Reply Br. 9). SRI argues that comparative example 3, shown in Table 2 below, is closest to Kametani’s golf ball marking because the ink composition of example 3 includes uncoated metallic powder. (App. Br. 19). SRI argues that inventive examples 1 and 2, shown in Table 1 below, achieve an unexpectedly better weather resistance (i.e., lower value of ΔE) and maintenance of luster and separation compared to example 3. (App. Br. 20). Thus, SRI argues that one of ordinary skill in the art would understand that the present invention achieved unexpected results. (Reply Br. 9). Table 1, reproduced from SRI’s table 3 is below. Table 1 depicts the compositions and test results for the inventive examples. Appeal 2008-5673 Application 10/337,288 17 Table 2, reproduced from SRI’s table 4 is below. Table 2 depicts the compositions and test results for the comparative examples. SRI’s assertion that comparative example 3 is closest to Kametani’s golf ball marking fails to take into account that Kametani’s golf ball cover material comprises an ionomer resin which is plasma surface treated and subsequently sprayed with a 2-liquid reaction type urethane clear coat paint following marking. (FF 3). In contrast, SRI’s golf ball cover for examples 1 to 6 and comparative examples 1 to 3 is made of a combination of ethylene- methacrylic acid copolymer ionomer resins (i.e., Hi-milan 1605, Hi-milan 1706 and Hi-milan 1707) and titanium oxide which is surface treated by sandblasting and subsequently coated with clear paint following marking. (FF 13). SRI has not accounted for these differences or their effects on the test results. Appeal 2008-5673 Application 10/337,288 18 As shown in tables 1 and 2, comparative example 3 and inventive example 1 have identical ink compositions with the only difference being whether the metal powder is or is not coated with resin. Comparative example 3 and inventive example 2 only have the same amount of metal powder (i.e., 10) but otherwise have different ink compositions. SRI does not account for the fact that the resin coated aluminum powder paste of inventive Examples 1 and 2 have an aluminum powder content of 47%, average particle diameter 11.5 μm and a thickness of 20 Ǻ, while the uncoated aluminum powder paste of comparative example 3 has an aluminum powder content of 50%, average particle diameter 10.5 μm and a thickness of 18Ǻ. (FFs 14-15). SRI does not provide objective evidence that the better weather resistance (i.e., lower value of ΔE) and maintenance of luster and separation of inventive examples 1 and 2 compared to comparative example 3 is the direct result of using the resin coated metallic powder instead of uncoated metallic powder. SRI has not accounted for the differences in aluminum powder content, average particle diameter and paste thickness between comparative example 3 and inventive examples 1 and 2. In conclusion, SRI does not demonstrate unexpected results because SRI does not provide objective evidence to establish that the improved results are the direct result of using resin coated metallic powder instead of uncoated metallic powder. Moreover, SRI does not direct attention to where in its Specification or through evidentiary submissions that the results are unexpected. Instead, SRI argues that the results are unexpected in its briefs. (App. Br. 18-20, Reply Br. 9). Attorney argument is insufficient to establish unexpected results. Appeal 2008-5673 Application 10/337,288 19 For all these reasons, SRI has not sufficiently demonstrated that the claimed invention achieves unexpected results. E. Conclusions of Law Based on the Findings of Fact and the Analysis above, SRI has not sufficiently demonstrated that the Examiner erred in establishing a prima facie case of obviousness. Further, SRI has not sufficiently demonstrated that the claimed invention achieves unexpected results. F. Decision The decision of the Examiner rejecting claims 1-8 under 35 U.S.C. § 103(a) as unpatentable over Kametani and Kiyoshi is affirmed. No time period for taking any subsequent action in connection with the appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED ack cc: BIRCH STEWART KOLASCH & BIRCH PO BOX 747 FALLS CHURCH VA 22040-0747 Copy with citationCopy as parenthetical citation