Appeal No. 1999-0674
Application No. 08/654,536
patentably distinguishes over the prior art by reciting that the channel extends from an opening in
the outer surface “toward the other end in a direction of curvature of the outer surface . . .”
Since, by definition, a toroidal shape has no ends, the only reasonable interpretation of the
language in claim 23 is that the recitation of “the other end” refers to the end of the channel
opposite from the opening in the outer surface. Given this interpretation, the language in claim
23 is broad enough to read on a channel of any length. As such, the limitation concerning the
length of the channel in claim 23 is broad enough to read on the curved channel in the Rheon
bread product as well as the channel formed in the donut product disclosed in the Edhard
metering systems pamphlet. As for appellant’s arguments on page 8 of the main brief, neither
claim 23 nor any other product claim on appeal is limited to the particular type of filling spout or
any other part of the filling apparatus. In any case, these arguments are not supported by any
evidence, and it is well settled that arguments of counsel cannot take the place of evidence. See
In re Pearson, 494 F.2d 1399, 1405, 181 USPQ 641, 646 (CCPA 1974).
In support of the arguments about the inadequacy of the Rheon foodstuff injection
pressure, appellant has submitted two letters. The first letter is dated December 18, 1997 and
accompanied an unnumbered faxed letter dated December 18, 19974 and styled “Transmittal.”5
This first letter lacks the signature of the writer. According to the letterhead, however, it was
transmitted from a company called “The Sandwich Factory” and was sent to Debbie Iannucci, a
sales coordinator at Rheon. Ms. Iannucci wrote remarks on the Sandwich Factory letter and
4 The examiner’s statement on page 8 of the answer (which itself is dated June 3, 1998) that this letter was
filed with a response dated “Dec. 23, 1998” is an obvious error.
5 Upon return of this application to the Technology Center, a review of the file wrapper contents is advisable
to ensure that all papers are appropriately numbered and listed in the file wrapper contents.
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