Appeal 2007-2488
Application 10/081,483
1 “a liquid having a sparingly soluble effervescence inducing gas dissolved
2 therein” as required by claim 1. Farr has not directed us to any evidence to
3 the contrary. The argument of counsel is not evidence. In re Geisler, 116
4 F.3d 1465, 1470, 43 USPQ2d 1362, 1366 (Fed. Cir. 1997).
5 Farr argues that Frutin I does not describe a valve that is designed to
6 be opened via the consumer’s mouth. While Frutin I does not describe
7 opening the valve via the consumers mouth, it appears to us that the valve
8 easily could be used in such a way as with the valve of a conventional
9 whipped cream dispenser. We find that the examiner has met the burden of
10 showing a sufficient basis to support a determination that the tilt valve
11 shown in Frutin I would inherently be openable “via the consumer’s mouth”.
12 Given this showing, it is Farr’s burden to show that the valve shown in
13 Frutin I does not inherently possess the feature of being openable by the
14 mouth. Farr has argued, but has not directed us to evidence, showing that
15 the valve of Frutin I could not be used in the mouth.
16 Farr argues that the tilt valve described in Frutin I is “serrated with
17 sharp notches or teeth” such that inserting it into the mouth would “certainly
18 cause injury.” (Br. at 9-10). However, Farr has not directed us to any
19 portion of Frutin I that describes the serrated portion of the valve as having
20 “sharp notches or teeth.”7 Again, Farr has presented only attorney argument
21 and not evidence that would establish that the valve shown in Frutin I is not
22 suitable for placing in the mouth.
7 Farr directs us to reference number 310 at Figure 4. (Br. at 9). Figure 4
does not have a reference number 310. Our understanding is that Farr meant
to refer to Figures 12 and 13 where there is a reference number 310.
16
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Last modified: September 9, 2013