Appeal No. 2004-2103 Page 5
Application No. 10/026,033
In this case, the appellant has provided no evidence that "linear" as used in
claims 2 and 6 would be understood by one of ordinary skill in the art to mean that the
valve has a variety of positions between fully closed and fully open. Attorney argument
in a brief cannot take the place of evidence. In re Pearson, 494 F.2d 1399, 1405, 181
USPQ 641, 646 (CCPA 1974). As such, we find ourselves in basic agreement with the
position of the examiner as set forth in the answer (pp. 4-5).
The specification does not provide any definition of "linear" nor does it otherwise
provide any enlightenment as to the meaning of "linear." Figure 1 does not depict the
linear solenoid apply valve 60 as having a variable orifice. Thus, we believe that the
broadest reasonable meaning of "linear" as used in claims 2 and 6 as it would be
understood by one of ordinary skill in the art is that the valve moves in a straight line.
Since the holding valve 36 of Nakanishi is a two-position valve that moves in a straight
line, the claimed linear solenoid valve is readable thereon.
For the reasons set forth above, the decision of the examiner to reject claim
claims 2 and 6 under 35 U.S.C. § 102(b) is affirmed.
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