Appeal No. 2005-1332 Page 8
Application No. 09/774,064
We conclude that the Examiner has established a prima facie case of obviousness with
respect to the subject matter of claims 1 and 3 which has not been sufficiently rebutted by
Appellants. To the extent that Appellants are relying upon a showing of unexpected results to
overcome the prima facie case of obviousness, we note that sufficiently probative objective
evidence has not been relied upon in this appeal. Attorney arguments in the brief cannot take the
place of evidence. In re Lindner, 457 F.2d 506, 508, 173 USPQ 356, 358 (CCPA 1972).
CONCLUSION
To summarize, the decision of the Examiner to reject claims 1 and 3 under 35 U.S.C.
§ 102(b) or, in the alternative, under 35 U.S.C. § 103(a) is affirmed on the basis of obviousness
under § 103(a).
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