Appeal No. 1997-4292 Page 14
Application No. 08/515,344
lateral dimension is not evidence. See In re Pearson, 494
F.2d 1399, 1405, 181 USPQ 641, 646 (CCPA 1974)(attorney's
arguments in a brief cannot take the place of evidence).
For the reasons set forth above, the decision of the
examiner to reject claim 5 under 35 U.S.C. § 102(e) is
affirmed.
CONCLUSION
To summarize, the decision of the examiner to reject
claims 1 to 5 under 35 U.S.C. § 102(e) is affirmed with
respect to claim 5 but reversed with respect to claim 1 to 4.
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