Appeal 2006-2536
Application 10/611,127
V. ENABLING I/O REQUESTS
The Examiner finds, "Burton's system also teaches changing from the
preferred to non-preferred path as taught in col. 7, lines 6-22. The non-
preferred path (containing the non-preferred controller) will now receive the
I/0 command)." (Answer 6.) The Appellants allege, "Burton's modifying of
the preferred path assignment is different from the claimed enabling step. .
. ." (Br. 7.) Therefore, the issue is whether the Appellants have presented
evidence of error in the Examiner's rejection.
"On appeal to the Board, an applicant can overcome a rejection by
showing insufficient evidence of prima facie obviousness or by rebutting the
prima facie case with evidence of secondary indicia of nonobviousness."
In re Rouffet, 149 F.3d 1350, 1355, 47 USPQ2d 1453, 1455 (Fed. Cir.
1998). "Argument in the brief does not take the place of evidence in the
record." In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA
1965) (citing In re Cole, 326 F.2d 769, 773, 140 USPQ 230, 233 (CCPA
1964)). "Broad conclusory statements regarding the teaching of . . .
references, standing alone, are not 'evidence.'" In re Dembiczak,
175 F.3d 994, 999, 50 USPQ2d 1614, 1617 (Fed. Cir. 1999) (citing
McElmurry v. Arkansas Power & Light Co., 995 F.2d 1576, 1578,
27 USPQ2d 1129, 1131 (Fed. Cir. 1993); In re Sichert, 566 F.2d 1154, 1164,
196 USPQ 209, 217 (CCPA 1977)).
Here, the Appellants have presented no evidence to support their
allegation that Burton's modifying of a preferred path assignment differs
from the claimed enabling step. Instead, they "assum[e] arguendo that
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