Appeal No. 2002-1143
Application No. 09/085,933
view that the preamble of the appealed claims does not constitute a
limitation of the claims.
We also note appellant’s contention on page 7 of the reply
brief that the recited “core” is a term of art; however, we are
appraised of no persuasive evidence of record to support
appellant’s contention. 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).
For the above reasons, the newly entered anticipation
rejections of claims 21 and 26 are proper.
Conclusion
The examiner’s rejection of claims 21 and 26 as being
unpatentable over Shiba is reversed.
New rejections of claims 21 and 26 have been made.
This decision contains a new ground of rejection pursuant to
37 CFR § 1.196(b). 37 CFR § 1.196(b) provides, "[a] new grounds of
rejection shall not be considered final for purposes of judicial
review."
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