Appeal No. 2001-0271 Page 7
Application No. 08/855,474
layer 108 is not attached thereto (col. 6, lines 29-36). The
pouch 138 is expandable, due to the fact that all of the
materials (cover 108 and base layer 112) of which it is formed
are flexible (col. 6, lines 41-43).
Appellant's argument (brief, p. 6) that House does not
disclose a pocket or an aperture is not well taken. The
opening at the peripheral edge 144D at which the cover and
base layer are not attached, which provides access into the
pouch 138, is an aperture as recited in claim 12. Claim 12
does not recite a pocket, but, in any event, the pouch 138 is
a pocket as that term is conventionally understood.3
Appellant also argues that various types of computer
disks, such as, for instance, ZIP disks, would badly deform
the mouse pad of the House reference (brief, p. 6).
Initially, we note that appellant has not provided any
evidence to support this assertion. Moreover, even if4
appellant is correct that insertion of a disk ZIP drive would
A "pocket" is a receptacle or container (Webster's New Collegiate3
Dictionary (Merriam-Webster 1977)).
An attorney's arguments in a brief cannot take the place of evidence.4
In re Pearson, 494 F.2d 1399, 1405, 181 USPQ 641, 646 (CCPA 1974).
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