Appeal No. 1999-0512
Application No. 08/701,979
be incapable of retaining a stent in position (page 8). An
argument of counsel, of course, is not evidence. See In re De
Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984).
Under the present circumstances, more than attorney argument
in a brief is required since the Ryan patent itself (column 5,
lines 39 through 44) expressly indicates that the stent is
“retained in position” by end caps 26, 28 which “receive and
capture” the proximal and distal ends of the stent and
“prevent axial displacement” of the stent as the delivery
system and the stent are guided through the patient. Ryan
further points out (column 6, lines 35 through 39) that the
end caps 26, 28 (Fig. 7A) serve to “prevent axial movement of
the stent toward either the proximal or distal end of the
delivery catheter.” As to end caps 102, 104 (forming
shoulders 106, 108) located under the balloon, they can be
made of a flexible, polymeric material and include at least
one slit and yet still, as patentee Ryan indicates, “hold the
stent in place as the delivery catheter is guided to a
selected location.” (column 12, lines 12 through 65). In a
concluding paragraph of the patent (column 12, lines 23
through 25) Ryan emphasizes that a stent is “securely
8
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