Interference No. 104,192
Cragg v. Martin v. Fogarty
Fogarty is within the fabric liner leg 28, one ends up with an
anchor section-fabric liner-tubular graft assembly that is not
rigid and is not supported. The argument is misdirected and
in any event unpersuasive. Here, the starting point for the
obviousness analysis is not some embodiment disclosed in
Fogarty’s specification, but Fogarty’s claim 41 which does not
require placing the first tubular graft in a fabric liner leg.
Moreover, in any event Cragg has submitted no meaningful
evidence in the form of declaration or affidavit testimony
from anyone to establish that one with ordinary skill in the
art would not have known how to introduce the anchor section
together with the first tubular graft. As Fogarty has pointed
out in its opposition brief, attorney argument cannot take the
place of evidence lacking in the record. See, e.g., Knorr v.
Pearson, 671 F.2d 1368, 1373, 213 USPQ 196, 200 (CCPA 1982);
Meitzner v. Mindick, 549 F.2d 775, 782, 193 USPQ 17, 22
(CCPA), cert. denied, 434 U.S. 854, 195 USPQ 465 (1977); In re
Lindner, 457 F.2d 506, 508, 173 USPQ 356, 358 (CCPA 1972).
Cragg’s preliminary motion 2 further seeks to have all of
Fogarty’s claims corresponding to the count, i.e., claims 27-
69, designated as not corresponding to the count. We ruled in
the decision on preliminary motions that per 37 CFR §
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