Appeal No. 96-4041
Application 08/264,704
fitting in any of the hood openings. However, in that claim 1
does not positively recite the anesthesia circuit fitting as a
positive element of the claimed subject matter, this line of
argument is not persuasive.
With respect to appellant’s argument on page 8 of the
brief to the effect that Trammell’s device would not work if
modified in the manner proposed by the examiner, we are
appraised of no persuasive evidence of record to support
appellant’s contention. It is well settled that an attorney’s
argument in the brief cannot take the place of evidence and
that arguments of counsel, unsupported by competent factual
evidence of record, are entitled to little weight. See 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).
In light of the foregoing, we will sustain the standing
rejection of claim 1 as being unpatentable over the teachings
of Trammell and Poppendiek. In that appellant has not
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