Appeal No. 2002-1291 Page 8
Application No. 08/693,052
compositions are not novel they are not rendered patentable by recitation of
properties, whether or not these properties are shown or suggested in the prior
art.” Id. at 709, 15 USPQ2d at 1658.
Thus appellant’s argument that the ORF D1701 cannot be considered as
having paramunizing properties is not convincing, as no evidence has been
presented to support that assertion, and arguments of counsel cannot take the
place of evidence in the record. See in re Scarbrough, 500 F.2d 560, 566, 182
USPQ 298, 302 (CCPA 1974); In re DeBlauwe, 736 F.2d 699, 705, 222 USPQ
191, 196 (Fed. Cir. 1984). Moreover, although attenuated viruses that no longer
virulent may be preferred, see Specification, page 8, the specification specifically
states that “poxvirus species may be used as freshly isolated, so-called virulent
field strains,” id. Thus, there is nothing in the specification or the claims that
limits the poxvirus components to those components that have no immunizing
properties.
Appellant argues further that “[t]here is an essential difference in the
timing of the effect of an immunizing and paramunizing element,” as well as “an
essential difference in the preparation of a paramunizing component, rather than
an immunizing one.” Appeal Brief, page 12.
That argument is also not convincing, as claim 19 is drawn to a
composition, not a method, and appellant is arguing method limitations.
Appellant argues further that the composition of the present invention has
superior effects as compared to a single paramunity inducer. Specifically,
appellant states that the effect of the claimed paramunity inducer (Conpind)
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