Appeal No. 2002-2208 Page 6
Application No. 09/543,989
teaches a channel 9 and cover 7, Pollock’s plank member “could not possibly bend
outwardly and upwardly about an axis extending through the center of the extrusion” is
not evidence. See In re Pearson, 494 F.2d 1399, 1405, 181 USPQ 641, 646 (CCPA
1974)(attorney's arguments in a brief cannot take the place of evidence).
Inasmuch as appellant’s arguments are insufficient to rebut the examiner’s prima
facie case of anticipation, we shall sustain the rejection of claim 25, as well as claims
26 and 27 which fall with representative claim 25, as being anticipated by Pollock.
The examiner has also rejected claims 25-27 as being anticipated by van den
Broek. In rejecting these claims, the examiner refers to Figures 1 and 4-7 and panel
10. The panels 10 which the examiner has determined correspond to the extrusion
recited in claim 25 are made of “any suitable plastic material such as PVC or the like”
(column 4, lines 47-48) and are assembled to form the wall of an in-ground swimming
pool. The van den Broek patent is silent with regard to the rigidity or flexibility of the
panels 10. The examiner contends that the extrusion 10 inherently possesses the
resiliency called for in claim 25 because it is made of PVC (answer, page 5). For the
following reasons, we do not find the examiner’s position to be well taken.
Given the closed double wall structure of the panels 10 and the purpose (i.e.,
formation of a swimming pool wall) which they serve, one of ordinary skill in the art
would expect these panels to be relatively rigid, especially when considered in light of
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: November 3, 2007