Appeal No. 96-3130
Application 08/225,653
F.2d 705, 708, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990); In re
Fitzgerald, 619 F.2d 67, 70, 205 USPQ 594, 597 (CCPA 1980); In re
Best, 562 F.2d 1252, 1254-55, 195 USPQ 430, 433 (CCPA 1977); In
re Glass, 474 F.2d 1015, 1019, 176 USPQ 529, 532 (CCPA 1973); In
re Ludtke, supra; and In re Swinehart, 439 F.2d 210, 212-13, 169
USPQ 226, 229 (CCPA 1971). The appellants, however, have not
satisfied this burden.
In response to the examiner's challenge to prove that the
structure of Sperry does not in fact inherently perform the
critical function, the appellants merely argue that the, inasmuch
as Sperry's structure is stated to provide a "fairing," it cannot
perform the function in question. First, we observe that
counsel's arguments in the brief 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) and In re Pearson, 494 F.2d 1399, 1405, 181
USPQ 641, 646 (CCPA 1974). Second, it does not follow that just
because in lines 15 and 16 of column 3, Sperry describes the
leading edge of his protuberance as a "fairing," that the sides
of the protuberance do not perform the function in question as
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