Appeal No. 96-3833
ApplicationApplication 08/014,320
a heater with a separate thermostatic control are well known,
making the selection of one or the other for a particular
installation a matter of choice or engineering design. See In re
Heinrich, 268 F.2d at 756, 122 USPQ at 390.
Accordingly, we will sustain the examiner’s § 103 rejection
of claim 35. We will also sustain the examiner’s rejection of
claims 36, 37 and 39 since, as noted supra, these claims stand or
fall with claim 35.
In sustaining the examiner’s rejections of the appealed
claims, we are not mindful of appellant’s arguments regarding
long felt need as set forth on page 12 of the brief. However,
there is no evidence, such as a declaration or affidavit, to
support these arguments, and it is well settled that arguments of
counsel cannot take the place of evidence. In re Pearson, 494
F.2d 1399, 1405, 181 USPQ 641, 646 (CCPA 1974).
We also are not unmindful of a colored photograph found in
the file and depicting what appears to be a comparison between a
“factory original blade” and a “heated wiper blade.” However,
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