Appeal No. 2002-1080 11
Application No. 09/372,149
Appellant’s argument (main brief, page 16) that ventilation is not needed in
McCarthy because McCarthy’s footwear has no upper is not persuasive because
moisture trapped at the interface between the foot and the sole member still may a
matter of concern in McCarthy. With respect to appellant’s argument (main brief, page
16) that the provision of a corrugated layer in McCarthy would likely result in instability,
we are appraised of no persuasive evidence of record to support appellant’s contention.
It is well settled that an attorney’s 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, 1402, 181 USPQ 641, 644
(CCPA 1974).
In light of the above, the standing rejection of claim 6 shall be sustained.
Claim 7
Claim 7 depends from claim 4 and adds that the plurality of layers are quilted
together at quilting portions, the quilting portions occupying an area much smaller that a
total area of the foot protector. In rejecting this claim, the examiner cites Greco for its
teachings of quilted insole layer 12.
Greco is directed to a toeless slipper having a sole 10 and optionally a soft insole
12 of quilted, padded material, attached to the sole 10 for providing cushioning and
thermal insulation (column 2, lines 30-34). Consistent with Greco’s disclosure that
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