Appeal No. 2000-1682 Page 6
Application No. 08/845,503
that argument of counsel is no substitute for evidence. In re
Lindner, 457 F.2d 506, 508, 173 USPQ 356, 358 (CCPA 1972).
In view of the foregoing, we will sustain the rejection
of claim 12 as anticipated by SU 1296174.
We turn next to the examiner’s rejection of claims 1
through 5, 10 and 11 under 35 U.S.C. § 102(b) as being
anticipated by Gerstel. It is the examiner’s opinion that
Gerstel discloses:
. . . “microprotrusions” with an elongate
crossections which are described as
puncturing projections and “puncturing
projections includes any projections
adapted to puncture, penetrate, scrape or
cut the stratum corneum. The projections
can be of any geometric shape and diameter
that leads itself to be made into
projections, such as needles, spikes,
tines, pointed triangles, pointed cones,
pyramidal points, hollow or solid with an
opening at one or at both ends thereof, and
the like”(emphasis added). . . The examiner
also considers the cutting tips of the
needle configurations to be blades as well.
Gerstel teaches that the length of the
microprotrusions are to vary from .5 um to
100 microns in length (column 7, lines 64-
65) which clearly overlaps applicant’s
disclosed range of 50um to 75um.
[examiner's answer pages 4 and 5]
Appellant argues that Gerstel teaches that the
projections do not cut into the underlying epidermis.
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