Appeal No. 1999-2845 Page 9
Application No. 08/495,471
appellant's supports 16, 17 (see Figure 2), Held's partitions
4, etc.). Thus, the claimed subject matter is not
distinguishable from Held's tank 1 with partitions 4 defining
individual chambers or cells filled with glass wool 8. As to
the appellant's allegation (brief, p. 13) that "Held will
inherently have areas with the liquid in the material and
areas with free flowing liquid thereby leading away from the
claimed invention in which the liquid is uniformly stored in
the mat," we note first that arguments in a brief cannot take
the place of evidence (In re Pearson, 494 F.2d 1399, 1405, 181
USPQ 641, 646 (CCPA 1974)) and second that the argument is not
commensurate in scope with the claimed invention. Likewise,
the appellant's argument that Held is silent on "bonded glass
wool" is not commensurate in scope with the claimed invention
since bonded glass wool is not claimed.
Since all the limitations of claim 49 are disclosed in
Held for the reasons set forth above, the decision of the
examiner to reject claim 49 under 35 U.S.C. § 102(b) is
affirmed.
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