Appeal No. 2001-2320
Application 09/097,295
success and superior results allegedly enjoyed by the claimed
invention constitute secondary indicators of non-obviousness.
The record, however, does not contain any evidence supporting the
assertions of commercial success and superior results. The
argument of counsel in a brief cannot take the place of evidence.
In re Pearson, 494 F.2d 1399, 1405, 181 USPQ 641, 646 (CCPA
1974).
In light of the foregoing, the appellant’s position on
appeal that the differences between the subject matter recited in
independent claims 1, 26 and 30 and the prior art are such that
the subject matter as a whole would not have been obvious at the
time the invention was made to a person having ordinary skill in
the art is not persuasive.
Accordingly, we shall sustain the standing 35 U.S.C.
§ 103(a) rejection of claims 1, 26 and 30 as being unpatentable
over Parsons in view of either Palmer or Ito and the standing 35
U.S.C. § 103(a) rejection of claims 1, 26 and 30 as being
unpatentable over Steenstrup in view of either Palmer or Ito.
We also shall sustain the standing 35 U.S.C. § 103(a)
rejection of dependent claims 2 through 4, 14 through 17, 19
through 21, 24, 25 and 31 as being unpatentable over Parsons in
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