Ex parte TAKIZAWA - Page 9




              Appeal No. 1999-1504                                                                      Page 9                
              Application No. 08/787,262                                                                                      


              directed by appellant's brief, we are informed that "the fishing rod can be precisely manipulated               
              through the use of the finger received in the constriction 22, while the bulge ensures a stable                 
              grasp may also be comfortably maintained."  However, appellant has provided no explanation,                     
              much less evidence, as to whether or how the exact positioning of the peak or center of the                     
              bulge is critical in achieving these advantages.   Moreover, as discussed below in the new5                                                                

              ground of rejection, on the basis of appellant's original disclosure, and most notably original                 
              Figures 3 and 4, it appears that the above-noted advantages may be obtained even if the peak or                 
              center of the bulge is offset from a position "diametrically opposed from" the fixed hood.                      
              Accordingly, we find the examiner's position with regard to the positioning of the peak or                      
              center of the bulge to be reasonable and shall sustain the examiner's rejection of claims 18-21                 
              under 35 U.S.C.  103.                                                                                          
                      As to claim 22, based on our review of Figure 4 of Oyama, we find the "constriction"                    
              (contact portion 11) to be "radially spaced" from the fishing rod by the portion of handle (5)                  
              extending between the hoods and ending in a cylindrical screw (4).  Therefore, we shall also                    
              sustain the examiner's rejection of claim 22 under 35 U.S.C.  103.                                             
                                             NEW GROUND OF REJECTION                                                          
                      Pursuant to 37 CFR  1.196(b), we enter the following new ground of rejection.                          



                      Attorney's arguments in a brief cannot take the place of evidence.  In re Pearson, 494 F.2d 1399, 1405,5                                                                                                      
              181 USPQ 641, 646 (CCPA 1974).                                                                                  







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