Appeal No. 95-0339
Application 07/881,941
The examiner argues that it would have been obvious to one
of ordinary skill in the art to use the Burgess analysis method
for Jackson’s analysis because the Burgess method can be used to
measure entrained species in a fluid carrier, which is the aim of
Jackson’s chemical analyzer (answer, page 4).
Appellant argues that supercritical fluids are not ordinary
fluids that one of ordinary skill in the art would include within
the phrase “liquids, gases, solids, or mixtures thereof” used by
Burgess (col. 4, lines 6-7), and that such a person therefore
would not have been led to use his sensor in the Jackson system
(brief, page 3).
We are not persuaded by appellant’s argument because, first,
it is merely unsupported argument by appellant’s counsel, and
such an argument cannot take the place of evidence. See In re
De Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984);
In re Payne, 606 F.2d 303, 315, 203 USPQ 245, 256 (CCPA 1979);
In re Greenfield, 571 F.2d 1185, 1189, 197 USPQ 227, 230 (CCPA
1978); In re Pearson, 494 F.2d 1399, 1405, 181 USPQ 641, 646
(CCPA 1974). Second, it appears that because a supercritical
fluid has no distinguishable gas or liquid phase, one of ordinary
skill in the art, given the teaching by Burgess that the method
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