Appeal No. 1999-0113 Page 10
Application No. 08/472,321
claimed, due to its configuration with the webs" (brief, page 8), but has not provided any
evidence to support this assertion.3
We are also not persuaded by the appellant's argument that Orford discloses "nothing
more than loops which are engageable by the hand only and not likely engageable by the foot"
(brief, page 8). As we see it, the hand grips of Orford are capable of receiving either a hand
or a foot of the user and of closely conforming to and gripping an appropriately sized hand or
foot so as to meet the claim limitations.
Accordingly, we shall also sustain the examiner's rejection of claim 5, and of claims 6-
10, 50 and 51 which stand or fall therewith.
The appellant has argued separately the patentability of claim 49 (brief, pages 10-11).
This claim depends from claim 10 and adds the further limitation that the loop is rectangular in
cross section so that it is wider than it is thick. The Orford hand grips are disclosed as being
"made of leather bent over to form a rolled gripping portion 15 and a flat knuckle shield 16"
(page 2, lines 37-41). We share the appellant's opinion that it is not clear what a "rolled"
gripping portion is and that, based on this description and the illustration thereof, the gripping
portion is more likely to be round than rectangular as claimed. While the flat knuckle shield
may be rectangular in cross section, we are unable to determine with any certainty that this is
the case and the examiner has not addressed this issue. Further, we agree with the appellant
3Attorney'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).
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