Appeal No. 2003-0231 Page 10
Application No. 09/749,372
capable of performing the claimed limitations), it anticipates. See In re King, 801 F.2d
1324, 1326, 231 USPQ 136, 138 (Fed. Cir. 1986). Where, as here, the result is a
necessary consequence of what was deliberately intended, it is of no import that the
article's authors did not appreciate the results. See W.L. Gore & Assocs. v. Garlock,
Inc., 721 F.2d 1540, 1548, 220 USPQ 303, 309 (Fed. Cir. 1983).
The appellant's argument is unpersuasive since attorney argument in a brief
cannot take the place of evidence. In re Pearson, 494 F.2d 1399, 1405, 181 USPQ
641, 646 (CCPA 1974). Moreover, the appellant has not cogently explained why each
of Yuen's food containers 18 would be incapable of storing at least one microscope
slide. While Yuen's food containers 18 may have a different depth than the slide carrier
disclosed by the appellant, the appellant has not explained how this difference results in
the inability of each of Yuen's food containers 18 to store at least one microscope
slide.
For the reasons set forth above, it is our opinion that the subject matter of claims
1 and 13 is met by Yuen. Accordingly, the decision of the examiner to reject claims 1
and 13 under 35 U.S.C. § 102(b) is affirmed.
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