Appeal No. 2006-2083
Reexamination Control No. 90/006,352
the demands of holders of gold and silver certificates who wanted to redeem the certificates.
The assertion constitutes mere argument of counsel and cannot take the place of evidence
lacking in the record. Meitzner v. Mindick, 549 F.2d 775, 782, 193 USPQ 17, 22 (CCPA 1977);
In re Pearson, 494 F.2d 1399, 1405, 181 USPQ 641, 646 (CCPA 1974) (“Attorney’s argument in
a brief cannot take the place of evidence.”). The unsupported assertion does not establish a fact.
In any event, even assuming that some local or commercial banks did not have sufficient gold or
silver coin and bullion on hand to meet demand, that does not mean the U.S. Treasury as a whole
did not. The silver certificate was issued by the U.S. Treasury, not a local or commercial bank.
Even though the presidential proclamation did prohibit the redemption of gold and silver
certificates for some time, it is speculative to conclude on that basis that the U.S. Treasury did
not have enough gold or silver on reserve to cover outstanding certificates. And even further
assuming that to have been the case in 1933, it does not mean the same circumstance existed in
1923, the date of the silver certificate.
On page 12 of patentee’s brief, it is argued that “[t]he Congressional Acts, Presidential
Executive Orders and Supreme Court opinion cited above all show that the United States
Treasury did not in fact keep an inventory of precious metals equal to the number of issued
certificates.” But none of the cited evidence supports such a conclusion, as explained above.
The patentee’s conclusion is unexplained and speculative. The patentee nowhere addresses the
point that even with more than enough reserve to cover all outstanding certificates, it still might
not have been in the best interest of the nation to have all certificates redeemed. Also on page 12
of the brief, the patentee argues that the silver certificate has a payment risk and thus would not
meet the requirement of patentee’s claims. But elimination of payment risk is recited in a
whereby clause which derives significance from the claim feature of limiting the amount of
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