Appeal 2007-1593
Application 10/462,972
decreased size, increased reliability, simplified operation, and reduced
cost.”)
Appellant’s argument that making Alden’s mailer transparent would
render it unsuitable for its intended function, namely, shipping magnetic
tapes, because magnetic tapes must be protected from ultraviolet light, is not
persuasive. First, Appellant has not presented any evidence to support the
assertion that it is well known that magnetic tapes must be protected from
ultraviolet light. Appellant's 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). Further, even assuming Appellant is correct that the
magnetic tapes discussed by Alden must be protected from ultraviolet light,
Appellant has not asserted, much less proven, that selection of a suitable
material for Alden’s mailer which is both transparent for purposes of
permitting viewing therethrough and possessed of ultraviolet light shielding
characteristics would have been beyond the skill of one of ordinary skill in
the art at the time of Appellant’s invention.4
For the reasons set forth above, we conclude that Appellant has failed
to demonstrate the Examiner erred in determining that it would have been
obvious to modify Alden’s mailer to make it transparent. Accordingly, we
sustain rejection (1) as to claims 1-9, 11, 13, 14, and 21. Appellant’s only
argument with respect to rejection (2) is that Masoud does not overcome the
deficiencies of the combination of Alden with Perrin or Hobbs (Appeal Br.
7). Having found Appellant’s arguments as to the deficiencies of this
4 We note, in this regard, that ultraviolet light-filtering transparent plastics
for use in eyeglasses, for example, are notoriously well known.
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