Appeal No. 1999-2628 Page 8
Application No. 08/652,723
movement. This is true even if "penetrating through" as used in the claims requires that each
and every strand disposed between the legs (jaw members) lies between the comb-teeth, as the
appellant's arguments on page 3 of the reply brief suggest. While we have carefully considered
the appellant's argument on page 2 of the reply brief that the flat top surface of the detent will8
trap hair thereon as illustrated in Exhibit 2 of the reply brief, we observe, initially, that the
appellant has provided no evidence that this would occur if the Maggiore apparatus were
moved through the hair in a combing motion with the jaw members held in a non-clamping
state, rather than merely clamped to hair at a particular location as disclosed. Moreover, even9
accepting the appellant's argument in this regard, there is nothing in the structure suggested by
Wall which would preclude positioning of each and every strand of hair between the detents,
albeit perhaps with some manipulation of the jaw member and/or the strands being necessary
while the jaw members are held in a non-clamping position. Accordingly, we conclude that the
"whereby . . ." clause does not in this instance serve to patentably distinguish the claims over
the applied prior art .
The appellant also argues, on page 8 of the brief, that the channel taught by Wall carries
a foam cushion which receives and conforms about the detents so as to form mating surfaces
8By flat, we understand the appellant to mean that the outer surface of the detent is not tapered in the
direction transverse to the stroke direction. It is rounded in the stroke direction.
9An attorney's arguments in a brief cannot take the place of evidence. In re Pearson, 494 F.2d 1399, 1405,
181 USPQ 641, 646 (CCPA 1974).
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