Appeal No. 2004-1072 Page 13
Application No. 09/868,150
to satisfy that burden.3 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). Appellant's mere argument set forth in the brief that Uemura does not disclose
two different magnetic flux circuits as set forth in claim 7 but instead discloses a single
magnetic flux circuit 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).
CONCLUSION
To summarize, the decision of the examiner to reject claims 7 to 10 under
35 U.S.C. § 102(b) is reversed and a new rejection of claims 7 to 10 under 35 U.S.C.
§ 102(b) has been added pursuant to provisions of 37 CFR § 1.196(b).
This decision contains a new ground of rejection pursuant to 37 CFR § 1.196(b).
37 CFR § 1.196(b) provides that, "[a] new ground of rejection shall not be considered
final for purposes of judicial review."
3 In view of this new ground of rejection under 37 CFR § 1.196(b), the appellant has the
opportunity to submit such evidence to the examiner.
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