Ex Parte Colson - Page 6


                Appeal 2006-3364                                                                                  
                Application 10/305,972                                                                            

                       The Appellant argues that Alcocer would not have fairly suggested to                       
                one of ordinary skill in the art that using spacer cords in place of pleated                      
                strips would reduce costs and complexity (Br. 7-8).  As pointed out above,                        
                for a prima facie case of obviousness to be established the prior art need not                    
                be modified for the purpose of solving the problem addressed by the                               
                Appellant.  See Kemps, 97 F.3d at 1430, 40 USPQ2d at 1311; Beattie, 974                           
                F.2d at 1312, 24 USPQ2d at 1042; Dillon, 919 F.2d at 693, 16 USPQ2d at                            
                1901.  The Examiner relies upon the Appellant’s admitted prior art for a                          
                disclosure of spacer cords (Final Rejection mailed April 13, 2004, p. 2).                         
                Alcocer’s indication that mechanical fasteners and adhesives are effective                        
                for bonding spacing strips to ribs between sections of pleated material                           
                (col. 4, ll. 41-45) would have led one of ordinary skill in the art, through no                   
                more than ordinary creativity, to use adhesive as an alternative to mechanical                    
                fasteners for fastening the spacer cords at the joints between the pleated                        
                material sections in the Appellant’s prior art figures 1 and 3.  See KSR Int’l                    
                Co. v. Teleflex Inc., 127 S.Ct. at 1742, 82 USPQ2d at 1397.                                       
                       The Appellant argues that it would have been unexpected to one of                          
                ordinary skill in the art that an adhesive bead at a point location “would                        
                provide the necessary strength for reliably obtaining uniform spacing of the                      
                pleats” (Reply Br. 2).  The Appellant’s claims do not require reliably                            
                obtaining uniform spacing of the pleats.  Regardless, the Appellant has not                       
                provided evidence of unexpected results.  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).                                                                                  

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