Appeal 2007-2577
Application 90/006,344
proof.35 Prazoff cites no evidence for this contention. We cannot accept
attorney argument as evidence.36
Lin does more than aspire to a waterproof rope-light assembly, he
purports to provide "assured waterproofness [and] resistance to pressure".37
In view of this assurance, we must presume that Lin enabled those of skill to
make a waterproof rope-light assembly, including connectors, by following
the teachings of the Lin patent.38 Given the lack of evidence to the contrary,
the preponderance of evidence supports a finding that Lin's connectors are
waterproof and pressure-resistant.
The contested limitation, however, is "air tight". According to the
examiner, the fact that the connections are waterproof and pressure-resistant
"indicat[es] that the connections are air tight".39 The examiner cites no
evidence for this inference, but Prazoff does not really contest it either
(focusing instead on whether Lin is actually waterproof as discussed above).
We find the examiner's inference to be more likely than not within the
tolerances of this technology.40 Since at least one source of water that can
interfere with the operation of an electrical device is airborne humidity,
being waterproof would require the connector to resist the diffusion of
fluids, including air.
35 Br. 22.
36 In re Geisler, 116 F.3d 1465, 1470, 43 USPQ2d 1362, 1366 (Fed. Cir.
1997).
37 Lin 1:57-24.
38 Amgen, Inc., 314 F.3d at 1354, 65 USPQ2d at 1416 (presuming patents to
be enabled).
39 Ans. 8.
40 We appreciate, of course, that the fabrication of selectively permeable
barriers is an art unto itself.
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