Appeal No. 2002-1740
Application No. 08/447,398
Appellant has come forth with no evidence to support his position that there
would not have been a reasonable expectation of success on the part of one of ordinary
skill in the art of obtaining a vaccine providing a protective immune response. Nor has
appellant put forth any other argument or reasoning which would suggest that the
examiner has not properly established a prima facie case of obviousness. To this end
we note arguments of counsel cannot take the place of evidence. In re DeBlauwe, 736
F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984), In re Payne, 606 F.2d 303, 315,
203 USPQ 245, 256 (CCPA 1979).
We do not further address the disclosures of Salata, Wallis, Zhang, Munk and
Verbon, as we find the combination of Pal and Borremans renders the invention of
claim 47 obvious. Additional claims stand or fall with claim 47. The other references
relied upon by the examiner address limitations in the dependent claims which have not
been separately argued by appellant. We do not comment further upon these
references as they are not necessary to support rejection of claim 47.
We find the examiner has established a prima facie case of obviousness which
has not been rebutted by appellant with appropriate argument or evidence. The
rejection of the claims for obviousness is affirmed.
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