Appeal 2007-0415
Application 10/320,947
sidewall portion” (Br. 6, penultimate ¶). However, for the reasons set forth
above, we find that the claim recitation is essentially a statement of intended
use that does not serve as a positive limitation with respect to the claimed
annular apparatus. Moreover, we agree the Examiner that Nigon would have
suggested positioning the annular antenna in the lower sidewall portion of a
tire.
Appellants further contend that the present “invention provides a more
durable antenna that is protected from breakage to an extent not achieved by
the prior art [and] [t]hat such an advantage exists is a fact and not mere
argument” (Br. 12, first ¶) . However, as noted by the Examiner, Appellants
have not proffered any objective evidence on this record for the requisite
factual support for Appellants’ assertion of superior results. Without such
objective evidence, Appellants’ plea that such advantage “is a fact and not
mere argument” (id.) is nothing more than attorney argument. It is well
settled that arguments in the Brief cannot take the place of objective
evidence. In re Pearson, 494 F.2d 1399, 1405, 181 USPQ 641, 646 (CCPA
1974). Likewise, Appellants have presented no objective evidence to
support the argument that the claimed invention represents a synergistic
combination (Br. 17, first ¶).
In conclusion, based on the foregoing and the reasons well stated by
the Examiner, the Examiner’s decision rejecting the appealed claims is
affirmed.
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