Appeal No. 2005-1164 Page 7
Application No. 09/721,131
“arguments of counsel alone cannot take the place of evidence in the record….”
In re Pearson, 494 F.2d 1399, 1405, 181 USPQ 641, 646 (CCPA 1974)
(“Attorney’s argument in a brief cannot take the place of evidence.”).
Accordingly, we are not persuaded by appellant’s unsupported assertions.
Appellant’s second theory, is that “the disruption/rupturing of the smaller
HIV cells should cause them to be removed from the larger human cells, thereby
alleviating the HIV infection.” Brief, page 6. According to appellant (Brief, page
8), since Hrinda demonstrates that salt can be used to remove HIV particles from
a chromatography resin “and appellant does theorize that the particular amount
of sodium chloride formulation will remove the HIV cells from the human CD4 T-
cells. … [O]ne could also argue in the alternative that Hrinda … is supportive of
appellant’s theory of how and why his invention works.”
In response the examiner finds (Answer, page 7), Hrinda discloses that a
NaCl concentration of 0.6-2 M is required to elute HIV particles from the
chromatography resin. Hrinda, column 8, lines 57-61. In this regard, the
examiner points out (Answer, bridging sentence, pages 7-8), “[a]ccording to
[a]ppellant’s [s]pecification, the administration of sodium chloride as claimed
should result in circulating levels of NaCl within the range of about 0.05 to about
1.0 µM … which is far below the levels disclosed in Hringa [sic] et al. to be useful
for washing HIV without removing the same from the [chromatography] resin.”
Therefore, in contrast to appellant’s assertion, the examiner finds (Answer, page
8), Hrinda, “even under this alternative theory, supports the conclusion that
[a]ppellant’s claimed invention lacks credible utility.” We agree. There is no
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