Appeal No. 1998-1872
Application No. 08/568,285
There is nothing pointed out in the references that persuades us of the correctness of the
argument, in view of what claim 1 actually requires. The combined teachings of the
references would have suggested replacing pump 5 of Saulgeot with two pumps in series
as taught by Baret. Claim 1 includes within its scope leak detectors which include a
turbomolecular pump in series with a mechanical secondary pump, which in turn is in
series with a dry primary pump. No basis is pointed out in the references to show that the
problems inherent with dry primary pumps, as taught by Baret, were already remedied by
means of a portion of turbomolecular pump 7, and the artisan thus would have recognized
that the second mechanical secondary pump 3 in Baret would be entirely unnecessary.
That the combination may have been regarded as redundant, undesirable, or even
inoperative by the artisan is not based on the teachings of the references themselves. We
only have arguments of counsel in support of the proposition that the combination would
have been considered redundant or of no advantage. Arguments of counsel are not
evidence. See, e.g., Meitzner v. Mindick, 549 F.2d 775, 782, 193 USPQ 17, 22 (CCPA
1977); In re Pearson, 494 F.2d 1399, 1405, 181 USPQ 641, 646 (CCPA 1974).
For the foregoing reasons we sustain the examiner’s rejection of claims 1-3, as
appellants have not shown the rejection of claim 1 to be in error, and claims 2 and 3 fall
with claim 1.
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