Appeal No. 2002-2039 Page 11
Application No. 09/258,712
in a full section view of a fuel injector. In other words, the examiner has failed to
satisfy his prima facia burden of proof by merely identifying a drawing and then
superimposing the examiner's own speculations as to what the drawing shows
without any evidence of record to support that interpretation. In the present case,
Applicants have demonstrated that the Sturman drawing is reasonably subject to
more than one interpretation. In fact, Applicant's interpretation is the only
reasonable interpretation when one considers the practical problems associated
with mass manufacturing and assembly of fuel injectors. Speculation is no
substitute for evidence of facts. Since the examiner has not identified any
evidence of record to support his speculative interpretation of what Figure 2 of
the Sturman reference supposedly shows, the examiner's §102 rejections should
be summarily reversed for failing to satisfy the burden to make out a prima facia
case of anticipation.
Claim 1
In our view, the subject matter of claim 1 is readable on Sturman as set forth in
the answer. We find the appellants argument unpersuasive for the following reasons.
First, it is our opinion that Sturman does not show a spacer atop, but not
attached to the needle valve 120. The appellants' argument that Sturman shows a
loose fitting spacer atop, but not attached to, a needle valve member is unsupported by
any evidence2 and is, in our view, contrary to the specific disclosure of Sturman (e.g.,
the needle valve 120 is biased into a closed position by nozzle springs 122 located
within a nozzle spring chamber 124). It is our determination that the disclosure of
Sturman would have taught an artisan that nozzle springs 122 engage the needle valve
2 Attorney argument in a brief cannot take the place of evidence. In re Pearson, 494 F.2d 1399,
1405, 181 USPQ 641, 646 (CCPA 1974).
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