Appeal No. 96-1225
Application 08/107,696
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). Appellant provides no evidence as to what
movements of fluid those of ordinary skill in the art
considered to be produced by mechanical circulation, and why
no such movement is provided by an ultrasonic generator.
Appellant argues that Jackson ‘189 does not suggest that
ultrasonic waves produce suction zones and pressurized zones
(brief, page 7). Appellant apparently is arguing that the
formation of such zones is a characteristic of mechanical
circulation. Appellant’s argument is not convincing because
appellant has not established that the term "mechanically
circulated" was considered in the art to require the formation
of suction and pressure zones. Furthermore, Jackson ‘619
(col. 6, lines 47-52) teaches that ultrasonic energy produces
low and high
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