Appeal No. 2000-1449
Application No. 08/838,133
neck of a bottle actually teaches an ordinarily skilled artisan to
use locking ribs like the ribs 10 of Arona-Delonghi in Sander’s
closure.
With respect to the argument (main brief, page 9) that “the
cap disclosed in Arona-Delonghi encounters completely different
types of forces during installation and removal that would not
enable its use with Applicant’s claimed [tamper indicating
closure],” we are appraised of no persuasive evidence of record to
support this contention. It is well settled that an argument in
the brief cannot take the place of evidence and that arguments of
counsel, unsupported by competent factual evidence of record, are
entitled to little weight. See In re Payne, 606 F.2d 303, 315, 203
USPQ 245, 256 (CCPA 1979) and In re Pearson, 494 F.2d 1399, 1405,
181 USPQ 641, 646 (CCPA 1974).
As for the argument that there is no suggestion provided in
Arona-Delonghi which would motivate one skilled in the art to
provide a hook-shaped locking member on the tamper-evident band of
Sander, for the reasons discussed above we simple disagree with
appellant on this point. We also disagree with appellant that the
examiner employed impressible hindsight in rejecting the appealed
claims. More particularly, we consider that the § 103 rejection of
claim 1 takes into account only knowledge which was within the
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