Appeal 2006-2035
Application 09/923,936
vessel and its shape depends on the degree to which it is filled” (col. 1,
ll. 30-33), appears to be a disclosure of how the vessel is buoyant when it
contains liquid. It does not appear to be a disclosure that the vessel, when
empty, is not buoyant. Because Hawthorne’s natural or synthetic rubber
used to impregnate the fabric (col. 1, ll. 21-22), and fluorosilicates and cold
setting resins used to proof the flexible material (col. 1, ll. 66-70), are among
the Appellants’ coating materials (Specification 12: 26-32), it reasonably
appears that like the Appellants’ materials, Hawthorne’s materials render the
empty vessel buoyant.1
The Appellants argue that “the increase of buoyancy of a floating
object is not always a desirable attribute as it can result in instability and
undesirable towing or handling characteristics” (Br. 6). The Appellants
have provided no evidence in support of that argument, particularly evidence
relating to the Appellants’ type of vessel, 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).
The Appellants argue that there would have been no motivation for
one of ordinary skill in the art to combine the disclosures of Hawthorne and
McCullough (Br. 6). That motivation would have been to coat Hawthorne’s
vessel with McCullough’s coating material to increase the buoyancy of the
vessel when it is empty so that it does not sink.
The Appellants argue that there is no suggestion in Hawthorne that
increased buoyancy is desirable (Br. 7). There also is no suggestion in
1 Hawthorne does not disclose the impregnation technique. However, it
reasonably appears that any conventional impregnation technique, such as
dipping, rolling, or spraying, will also coat the surface to at least some
extent.
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Last modified: September 9, 2013