Board discusses "unexpected results"
Referring to its Table 1, Applicant argues that invention achieves unexpected results due to the dimensions of the absorption layer. Applicant has the burden of proving unexpected results inhere in the claimed subject matter. See In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972). Applicant’s proofs must be clear and convincing. In re Heyna, 360 F.2d 222, 228 (CCPA 1966) ("It was incumbent upon appellants to submit clear and convincing evidence to support their allegation of unexpected property.") The proofs must show that the superior results are “surprising or unexpected” to one of ordinary skill in the art when considered in the context of the prior art. In re Soni, 54 F.3d 746, 750 (Fed. Cir. 1995). It is not sufficient to show that results are obtained which merely differ from those obtained in the prior art. The difference must be shown to be an unexpected. In re D'Ancicco, 439 F.2d 1244, 1248 (1971). In other words, mere improvement in properties does not always suffice to show unexpected results.” Soni, 54 F.3d at 751. Additionally, The unexpected results relied upon also must be “different in kind and not merely in degree from results of the prior art.” In re Harris, 409 F.3d 1339, 1344 (2005).
Applicant has presented only attorney argument that the increased degree of efficiency would have been considered unexpected to a person having ordinary skill in the art. Counsel’s argument cannot take the place of evidence lacking in the record. Estee Lauder Inc. v. L'Oreal, S.A., 129 F.3d 588, 595 (Fed. Cir. 1997). Applicant has failed to provide clear and convincing evidence that the claimed ratios provide in an unexpectedly improved solar cell.