Appeal No. 1998-0596
Application 08/259,370
assembly are not thin film layers formed by thin film deposition. Note, however, that only
elements 50 and 52 are plastic sheets, and layers 40, 42 and 56 are stiffeners. (Column
4, lines 47-51). Kant describes preferred stiffeners as stainless steel. (Column 5, lines
26-30). In the context of the appellants’ argument, we focus on plastic sheet 52. The key is
whether the structure of the plastic sheet is distinguishable from thin films formed by thin
film deposition. See, e.g., In re Thorpe, 777 F.2d at 697, 227 USPQ at 966. In that
regard, Kant states that the sheets 50 and 52 are “made of any type of plastic film which
has a good flex life” (column 5, lines 6-7). Kant discloses polyimide as a preferred plastic
material. (Column 5, lines 10-13). The appellants argue (Br. at 13):
Plastic, such as polyimide, cannot be deposited by thin film
deposition. Only certain elements such as alumina, permalloy,
etc. can be deposited by thin film deposition.
On that basis, the appellants argue that Kant’s plastic sheets are structurally different from
thin films made from thin film deposition techniques. The above-quoted assertions of the
appellants, however, are not supported by evidence. We cannot simply take the
appellants’ arguments as established facts. Counsel’s argument also does not take the
place of evidence. Knorr v. Pearson, 671 F.2d 1368, 1373, 213 USPQ 196, 200 (CCPA
1982); Meitzner v. Mindick, 549 F.2d 775, 782, 193 USPQ 17, 22 (CCPA), cert,
denied, 434 U.S. 854, 195 USPQ 465 (1977); In re Lindner, 457 F.2d 506, 508, 173
USPQ 356, 358 (CCPA 1972).
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