Appeal No. 2002-2206 Page 8
Application No. 09/054,211
Pat. App. & Int. 1993)) and as we will not speculate as to which particular references
the examiner alludes.
Turning next to the rejection of claims 19 and 20 as being unpatentable over
Peyron in view of Franklin, appellant does not dispute that Peyron discloses an
apparatus for the mechanical removal of pests and pest eggs from hair and fur, the
apparatus comprising a solid handle and a plurality of teeth as recited in claim 19.
Rather, appellant’s only argument with respect to claims 19 and 20 is that one of
ordinary skill in the art would not have been motivated to combine a relatively flat
cleaning device, such as that of Franklin, with a lice comb having closely spaced teeth,
because the close spacing of the apertures would be expected to result in too fragile a
device (see brief, page 5).
We find nothing in either Peyron or Franklin which supports appellant’s
contention that one skilled in the art would expect a cleaning member of the type
disclosed by Franklin, if adapted to accommodate the teeth of Peyron’s lice comb, to be
too fragile a device and appellant has provided no evidence to support this contention.
An attorney's arguments in a brief cannot take the place of evidence. In re Pearson,
494 F.2d 1399, 1405, 181 USPQ 641, 646 (CCPA 1974). Accordingly, we do not find
appellant’s argument persuasive of the nonobviousness of the subject matter of claim
19. Accordingly, we shall sustain the examiner’s rejection of claim 19. We note that
the appellant has not argued separately the patentability of claim 20 apart from claim
19. Therefore, claim 20 falls with representative claim 19 (see In re Young, 927 F.2d
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