Appeal No. 2003-0083 8
Application No. 09/691,532
(Fed. Cir. 1985). In any event, we are appraised of no persuasive evidence of record to
support appellant’s contention that incorporating a magnet element in Ehrlich would hinder
the operation of the flexible valve 68 or cause it to tear. 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, 1405, 181 USPQ 641, 646 (CCPA 1974).
In light of the foregoing, we shall sustain the standing rejection of claim 1 as being
unpatentable over Ehrlich in view of Frehse. We shall also sustain the standing rejection
of claim 9 as being unpatentable over Ehrlich in view of Frehse since appellant has not
argued this claim apart from claim 1. In re Kaslow, 707 F.2d 1366, 1376, 217 USPQ
1089, 1096 (Fed. Cir. 1983).
Looking next at dependent claim 7, appellant indicates on pages 4-5 of the main
brief that this claim is separately contested. Like the examiner, we consider that it also
would have been obvious to one of ordinary skill in the art, in applying the teachings of
Frehse in Ehrlich, to provide a magnet portion on Ehrlich’s venting valve 68 such that the
axle end plug “is comprised of” the magnetic portion. This is suggested by Frehse, which
discloses magnet 11 as being mounted on the vent plug 12. As to appellant’s above
noted argument to the effect that providing a magnetic portion on Ehrlich’s valve 68 would
hinder the operation of the valve or cause it to tear, we again observe that this argument is
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