Appeal No. 97-4166
Application No. 08/478,647
appeared in line 19 of page 17 wherein "30" should have been -
- 36 --.
As to rejection (I) the appellant argues that there is
"no teaching or suggestion in PARISH of any wedging means that
is designed to achieve any wedging action" (request, page 14);
however, this matter was fully treated on pages 5-7 of our
decision. Moreover, as we pointed out with respect to the
teachings of Parish on page 7 of our decision, in Parish
there is a sound basis to conclude that there will
inherently be a two-point, spaced contact occurring
at the wall 28 and "wedging means" 36 when the cup
14 is subjected to a tilting action in the manner
claimed (including allowing "generally no more than
eight degrees" tipping as set forth in dependent
claim 88), and the burden shifts to the appellant to
prove that it does not. See, e.g., In re Schreiber,
128 F.3d at 1477, 44 USPQ2d at 1432; In re Spada,
911 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); and In re Ludtke, 441 F.2d
660, 664, 169 USPQ 563, 566-67 (CCPA 1971).
Here, the appellant simply ignores this burden and argues that
the arrangement of Parish does not result in a wedging action;
however, 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,
3
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