Appeal No. 1998-2521
Application No. 08/184,212
standpoint that Crosbie’s male and female serrated, interengaging locking members are
similar to appellant’s locking members and function in the same way as appellant’s
locking members.
Finally, appellant’s arguments about nasal intubation (see pages 25-26 of the main
brief) are not persuasive for the reason discussed supra. As for the argument on page 26
of the main brief, Crosbie’s illustrated tube holder does have a bite block. However,
claim 1 is not written in such a way to exclude a bite block. Appellant has introduced no
evidence to show that Crosbie’s bite block would prohibit nasal intubation. In this regard,
it is well settled that arguments of counsel cannot take the place of evidence. In re
Pearson, 494 F.2d 1399, 1405, 181 USPQ 641, 646 (CCPA 1974).
For the reasons discussed supra, the subject matter of claim 1 is either anticipated
by Crosbie or, at the very least, obvious from the combined teachings of Crosbie, the
Ohio Chemical catalog and Austin. Accordingly, we will sustain the examiner’s § 103
rejection of claim 1.
We will also sustain the § 103 rejection of dependent claims 2 and 3. With
particular regard to claim 3, appellant concedes on page 27 of the main brief that Crosbie
discloses a “circular clamp.” This does not amount to a distinction over Crosbie. The
word “circular” is simply a synonym for the word “ring.” Like appellant’s holder, the
clamping body of Crosbie’s holder has a ring-like configuration to define a circular
aperture for receiving the medical tube as shown, for example, in Figure 3 of the Crosbie
patent. Thus, to the extent that appellant’s body can be called a “ring clamp,” Crosbie’s
clamp body may also be regarded as being a “ring clamp” because the configuration of
Crosbie’s clamp and the configuration of appellant’s clamp are similar. Since appellant’s
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