PV = nRT,
will know that as the temperature of the contents and container are increased
during the "on cycle," the pressure must increase since the volume and
number of moles remain essentially constant. Likewise, one of ordinary skill
in the art will know that as the temperature of the contents and the container
fall during the "off-cycle," the pressure must also fall. Tbus, the contents and
the container are exposed to intermittently applied reduced pressure within
the enclosure during the application of microwave energy.
Paper 40, p. 20.
With respect to the Par6 patents, Pard's inherency argument employs the following logic:
(1) a person having ordinary skill in the art would recognize that the "microwave oven" and the
"microwave applicator" mentioned respectively in Applications 08/327,638 and 08/012,475 is a
"conventional microwave oven"; (2) conventional microwave ovens supply microwave energy in
pulses, i.e., in on- and off-cycles during treatment; (3) the pulses will result in heating of the sample
and the surrounding gas during the on-cycle and the sample and the surrounding gas will cool during
the off-cycle; (4) the ideal gas equation predicts that during the on-cycle the gas pressure will rise
due to the heating and during the off-cycle the pressure will fall as the gas cools; (5) therefore, the
contents of the container are exposed to intermittently applied reduced pressure during the
application of microwave energy. Paper 41, pp. 4-5.
PaWs argument fails for a number of reasons.
First, Pard has not established that aperson having ordinary skill in the art would necessarily
understand "microwave oven" or "microwave applicator" as used in the Par6 patents to be a
"conventional microwave oven." Par6 has not provided any evidence explaining how a person
having ordinary skill in the microwave extraction art would understand the teachings of the Par6
patents. More particularly Par6 has not directed us to evidence showing that a person having
ordinary skill in the art would understand " microwave applicator" and "microwave oven" as used
in the Par6 patents to describe a "conventional microwave oven." Par6's motion merely makes the
unsupported argument that the Par6 patents teach the use of a "conventional microwave oven."
Argument of counsel cannot take the place of evidence in the record. Estee Lauder v. L'Oreal, S.A.,
129 F.3d 588, 595,44 USPQ2d 1610,1615 (Fed. Cir. 1997); Knorr v. Pearso 617F.2dl368,1373,
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