Appeal 2007-1524
Application 09/770,725
1 because the “binder contained in the electrode would normally be
2 decomposed or would deteriorate at such temperatures.” (Appeal Br. 12-
3 13.) Applicants’ argument is based solely on a statement of counsel. The
4 arguments of counsel cannot take the place of evidence in the record. In re
5 Geisler, 116 F.3d 1465, 1470, 43 USPQ2d 1362, 1365 (Fed. Cir. 1997) (“An
6 assertion of what seems to follow from common experience is just attorney
7 argument and not the kind of factual evidence that is required to rebut a
8 prima facie case of obviousness.”) Because Appellants have not proffered
9 any evidence to this effect, Applicants’ argument is of no help. Even if
10 evidence had been made of record in this appeal, Watanabe discloses drying
11 temperatures below 200°C, which presumably would not deteriorate the
12 binder.
13
14 CONCLUSIONS OF LAW
15 On the record before us, Applicants have failed to rebut the prima
16 facie case established by the Examiner that a person of ordinary skill in the
17 art would have found the subject matter of appealed claims 1-17 obvious
18 over the prior art.
19 We therefore affirm the rejection under 35 U.S.C. § 103(a) of all
20 claims.
21 No time period for taking any subsequent action in connection with
22 this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
18
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