Appeal No. 95-2533
Application No. 08/018,125
It is also the appellant’s position that “the type of shock-
absorbing material disclosed in the French patent does not enable
more effective obturation in response to and during transfer of
gas propellant forces” (see substitute brief, page 5). There is,
however, no evidence of record to support such a contention. 4
Contrary to the appellant’s bald assertion that the flexible
barrier and fluid contained therein (i.e., wad B’) of the French
patent does “not enable more effective obturation,” the French
patent, after noting the problems of the prior art resulting from
propellant gases rushing between a wad and a forcing cone during
firing (see the paragraph bridging pages 1 and 2 of the
translation), states that it is an object of the invention to
provide an obturator wad which is “capable of ensuring its
expansion at the rear, so as to make it conform progressively to
the shape of the cone” (translation, page 2, lines 19 and 20).
Thereafter, the French patent goes on to state that
as soon as the wad exits slightly from the case, it
begins to swell increasingly towards the rear as it
exits the case, with the result being that it ends up
conforming closely to the shape of the forcing cone
4Counsel’s arguments in the brief cannot take the place of
evidence. 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) and In re Pearson, 494 F.2d 1399, 1405, 181 USPQ
641, 646 (CCPA 1974).
8
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