Appeal 2007-0876
Application 10/057,346
whatever source, including moisture from the body. We therefore agree
with the Examiner that McAtee suggests the dried antibacterial member of
claim 10.
Appellant argues that claim 11 “is further distinguishable over the
McAtee patent because there is no teaching or suggestion in the McAtee
patent of an antibacterial tissue wherein the antibacterial member includes a
layer of antibacterial soap” (Br. 12). We do not agree.
As pointed out by the Examiner, the lathering surfactant acts as an
antibacterial agent in that it removes bacteria from the cleansed surface
(Answer 6). Moreover, as has been discussed, McAtee discloses that
“cosmetic biocides” are useful components of the personal cleansing article
(McAtee, col. 30, ll. 11-27). We agree with the Examiner that these
teachings would have made it obvious to use an antibacterial soap in
McAtee’s two-layered personal cleansing article.
Appellant argues that “[t]here is also no teaching or suggestion in the
McAtee patent of an antibacterial tissue wherein the antibacterial member
includes a layer of antibacterial agent as taught in Applicant's claim 12” (Br.
12).
We do not agree. With regard to Appellant’s argument that “[a]ll
soaps are not considered as bacterial agents” (Br. 12), it is well settled that
argument by counsel cannot take the place of evidence. In re Cole, 326 F.2d
769, 773, 140 USPQ 230, 233 (CCPA 1964); In re Geisler, 116 F.3d 1465,
1471, 43 USPQ2d 1362, 1365 (Fed. Cir. 1997). Because Appellant does not
support this argument with any evidence, we do not find it persuasive.
Moreover, because McAtee discloses the usefulness of “cosmetic biocides”
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