Appeal No. 2003-0468 Page 7
Application No. 09/447,752
In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985); In re King, 801
F.2d 1324, 1327, 231 USPQ 136, 138 (Fed. Cir. 1986).
In our view, the examiner's quoted statement above regarding the claimed
pumping force provides a basis in fact and/or technical reasoning to reasonably support
the determination that Bair's pumping chamber inherently is capable of producing
pressure pulses with a force of between 0.03 grams and 50.0 grams. Hence,
appellants' burden before the USPTO is to prove that Bair's pumping chamber is not
capable of producing pressure pulses with a force of between 0.03 grams and 50.0
grams. The appellants have not come forward with any evidence to satisfy that burden.
Compare In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433-34 (CCPA 1977); In re
Ludtke, 441 F.2d 660, 664, 169 USPQ 563, 566-67 (CCPA 1971). Appellants' mere
argument that Bair does not disclose this amount of force 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).
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