Appeal No. 2000-0305 Page 10
Application No. 08/887,453
over, and around the upper portion of the suspended binoculars
covering the lenses facing up. In view of the nature of
Andersen's cover 10, it is our determination that it is
reasonable to conclude that the cover 10 is inherently capable
of stretching and inverting only that portion of the cover
that covers an end of the article to cover and uncover the end
of an article. Hence, the appellant's burden before the PTO
is to prove that Andersen does not perform the functions
defined in claim 11. The appellant has not come forward with
any evidence to satisfy that burden. Compare In re Best, 562
F.2d 1252, 1255, 195 USPQ 430, 433-34 (CCPA 1977); In re
Ludtke, 441 F.2d 660, 664, 169 USPQ 563, 566-67 (CCPA 1971).
Appellant's mere argument on page 12 of the brief that
Andersen does not disclose the functions defined in claim 11
is not evidence. See In re Pearson, 494 F.2d 1399, 1405, 181
USPQ 641, 646 (CCPA 1974)(attorney's arguments in a brief
cannot take the place of evidence).
For the reasons set forth above, the decision of the
examiner to reject claim 11 under 35 U.S.C. § 102(b) as being
anticipated by Andersen is affirmed.
Page: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
Last modified: November 3, 2007