Appeal No. 96-2299
Application No. 08/072,753
using the guides disclosed in the secondary references in the
Dombrowski situation. From our perspective, Dombrowski’s
concern for sufficient strength is no more critical than that
of McKinney and Witt, and providing the necessary level of
strength in the modified Dombrowski device would have been
within the purview of one of ordinary skill in the art, who is
presumed to possess skill, rather than to be lacking it (see
In re Sovish, 769 F.2d 738, 743, 226 USPQ 771, 774 (Fed. Cir.
1985)). Moreover, although the appellants argue that rotating
journal bearings would not have sufficient strength to be
functional in the Dombrowski machine, they have offered no
evidence in support of this conclusion, and argument and
conclusionary statements of counsel do not constitute
evidence. See, for example, In re De Blauwe, 736 F.2d 699,
705, 222 USPQ 191, 196 (Fed. Cir. 1984).
The fact that independent claim 12 contains the
additional limitation that the cutting edge of the profiling
tool is at an angle to the tool axis, as is pointed out by the
appellants on page 5 of the Brief, does not cause us to alter
the opinion we voiced above. In this regard, we point out
that such is the case in all three of the applied references.
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