Appeal No. 2001-2512
Application No. 09/248,742
fall backward unless the backpack has a very small weight compared
to the rest of the chair.
We do not agree with the appellant that the Batie chair would
fall over backwards because of the weight of the backpack. We note
that claims 16 is broad enough to cover an empty backpack. In
addition, the appellant has not submitted any evidence to establish
that the Batie chair would fall over if a backpack were attached.
It is well established that arguments of counsel can not take the
place of evidence. In re Pearson, 495 F.2d 1399, 1405, 181 USPQ
641, 646 (CCPA 1974). Therefore, we will sustain this rejection as
it is directed to claim 16. We will also sustain this rejection as
it is directed to claim 19 as this claims stands or falls with
claim 16 as appellant has not argued the separate patentability of
claim 19. See In re Nielson, 816 F.2d 1567, 1572, 2 USPQ2d 1525,
1528 (Fed. Cir. 1987).
We turn next to the examiner’s rejection of claims 17 and 18
under 35 U.S.C. § 103 as being unpatentable over Batie in view of
Bradbury and Amato.
In response to this rejection, appellant argues that the Batie
chair would fall if a backpack were attached to the back of the
Batie chair. We will sustain this rejection for the same reasons
6
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: November 3, 2007