Appeal No. 2006-0064 Παγε 12
Application No. 09/155,740
Concerning appellants’ argument (reply brief, page 6) that adding a water activity
controlling agent (solute) to Reznik would inhibit the water absorption properties of the
fruit and change the principal of operation of Reznik, we again note that appellants have
not substantiated this argument with persuasive evidence in support thereof.5
Unsupported arguments of counsel cannot take the place of
evidence. See In re Pearson, 494 F.2d 1399, 1405, 181 USPQ 641,
646 (CCPA 1974).
As to the specific question of "teaching away," raised in
the briefs, our reviewing court in In re Gurley, 27 F.3d 551,
553, 31 USPQ2d 1130, 1131 (Fed. Cir. 1994) stated:
[a] reference may be said to teach away when a person
of ordinary skill, upon [examining] the reference,
would be discouraged from following the path set out in
the reference, or would be led in a direction divergent
from the path that was taken by the applicant.
Here, we agree with the examiner that the admitted prior art
and Hsieh provide facts which support the examiner’s obviousness
contention regarding the proposed modification of Reznik as
outlined in the answer and above and Hsieh does not serve as a
5 The total water content of the fruit is not a measure of the water activity thereof.
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