Appeal No. 2003-0384
Application 09/557,718
basis for concluding that the housing body and tapered front end
would coact to position the camera in a stream of water with the
front end oriented upstream and the back end oriented downstream
to the extent broadly recited in claim 1. The so-called
technical arguments advanced in the briefs to refute this
conclusion suffer from a number of fundamental flaws. To begin
with, such attorney arguments do not constitute competent
evidence of the proposition for which they are offered. See In
re Pearson, 494 F.2d 1399, 1405, 181 USPQ 641, 646 (CCPA 1974).
In addition, the proposition itself, that Chapin’s housing is
such that it would position the camera in a stream of water with
the front end oriented downstream and the back end oriented
upstream rather than vice versa as claimed, rests on conjecture
that fails to take into account a number of relevant factors such
as speed of the stream of water, weight distribution of the
camera, stiffness of the triaxial cable, etc. Moreover, the
claim limitation itself, requiring that the housing body and
tapered front end coact to position the camera in a stream of
water with the front end oriented upstream and the back end
oriented downstream, is quite broad in that it does not require
such positioning under all circumstances. In this vein, even if
the technical arguments advanced in the briefs are taken at face
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