Interference No. 103,950
However, Nardella has not submitted any credible evidence
that establishes this feature to be an inherent feature of the
prior art (Nardella’s claim 37). We note that argument of
counsel is no substitute for evidence. Meitzner v. Mindick,
549 F.2d 775, 782, 193 USPQ 17, 22 (CCPA 1977) cert. denied
434 U.S. 854, 195 USPQ 465 (1877). In addition, Nardella has
not explained why a person of ordinary skill in the art would
have been motivated to modify the stapler of the prior art
(Nardella’s claim 37) so as to have a cutting guide which
curves along the lengths of the anvil and cartridge and
includes a drive means for moving the cutter along the cutter
guide. As such, Nardella has not established the obviousness
of the subject matter of claim 6. In regard to claim 7,
Nardella, directs our attention to the recitations in claim 7
of (1) a plurality of holes formed on both sides of the cutter
guide and (2) a staple forming means comprising a plurality of
grooves. Nardella argues that these features are obvious
embodiments of the cutting and stapling device of the prior
art (Nardella’s claim 37). Nardella argues that virtually
every surgical cutting and stapling device that uses a
parallel cartridge and anvil, including Green ‘315, for
example, has these features.
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