Appeal No. 1997-0601
Application 08/161,878
Examiner noted above, of an “apparent error” in the drawings
of figures 5 and 10 and proposed to make the necessary
correction, but did not. However, our opinion does not solely
rely on this admission and omission. We further note that
Appellants have provided a lengthy response to the Examiner’s
position but we find a lack of relationship of the explanation
to the specification. Instead, Appellants rely on such
assertions as [reply brief, page 2] “[t]hese depletions layers
... are thoroughly understood by those skilled in the art”, or
that [brief, pages 7 to 8] “[a]ll of the above information is
common knowledge to persons skilled in the art, as these ‘four
layer diodes’ or Shockley diodes are well known.” No
independent evidence is presented to show that the alleged
information is indeed well known. As has been well
established, attorney's arguments in a brief cannot take the
place of evidence. In re Pearson, 494 F.2d 1399, 1405, 181
USPQ 641, 646 (CCPA 1974). Likewise, mere attorney argument
does not take the place of evidence lacking in the record.
Meitzner v. Mindick, 549 F.2d 775, 782, 193 USPQ 17, 22 (CCPA
1977), cert. denied, 434 U.S. 854, 195 USPQ 465 (1977).
Therefore, we find that, on balance, the record supports
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