Appeal No. 2006-1365
Application No. 10/672,133
not have enabled one of ordinary skill in the art to create a
broadcast receiver-generated purchase request (brief, page 7;
reply brief, page 2). The appellant has not provided evidence in
support of that argument, and arguments of counsel cannot take
the place of evidence. See In re De Blauwe, 736 F.2d 699, 705,
222 USPQ 191, 196 (Fed. Cir. 1984); In re Payne, 606 F.2d 303,
315, 203 USPQ 245, 256 (CCPA 1979); In re Greenfield, 571 F.2d
1185, 1189, 197 USPQ 227, 230 (CCPA 1978); In re Pearson, 494
F.2d 1399, 1405, 181 USPQ 641, 646 (CCPA 1974). Moreover, the
similar lack of technical detail in the appellant’s specification
indicates that if one of ordinary skill in the art could carry
out a radio-generated purchase based upon the appellant’s
disclosure at the time of the appellant’s invention, that person
could do the same given Kesling’s disclosure.
For the above reasons we are not convinced of reversible
error in the examiner’s rejections.
DECISION
The rejections of claims 1-13 and 15-19 under
35 U.S.C. § 102(e) over Kesling, and claim 14 under
35 U.S.C. § 103 over Kesling in view of official notice, are
affirmed.
No time period for taking any subsequent action in connection with this appeal
may be extended under 37 CFR § 1.136(a).
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