Ex Parte No Data - Page 7

                Appeal 2007-2783                                                                             
                Reexamination 90/005,509                                                                     
                Patent 5,533,499                                                                             
                      A nexus is required between the merits of the claimed invention and                    
                any objective evidence of nonobviousness offered, if that evidence is to be                  
                given substantial weight enroute to a conclusion on obviousness.  Stratoflex,                
                Inc. v. Aeroquip Corp., 713 F.2d 1530, 1539, 218 USPQ 871, 879 (Fed. Cir.                    
                1983).  Commercial success is relevant only if it flows from the merits of the               
                invention claimed.  Sjolund v. Musland, 847 F.2d 1573, 1582, 6 USPQ2d                        
                2020, 2028 (Fed. Cir. 1988).  Objective evidence must be commensurate in                     
                scope with the invention claimed.  In re Kulling, 897 F.2d 1147, 1149, 14                    
                USPQ2d 1056, 1058 (Fed. Cir. 1990); see also In re Tiffin, 448 F.2d 791,                     
                792, 171 USPQ 294, 294 (CCPA 1971).                                                          
                      Argument of counsel cannot take the place of evidence lacking in the                   
                record.  Meitzner v. Mindick, 549 F.2d 775, 782, 193 USPQ 17, 22 (CCPA),                     
                cert. denied., 434 U.S. 854; see also In re Pearson, 494 F.2d 1399, 1405,                    
                181 USPQ 641, 646 (CCPA 1974) (AAttorney=s argument in a brief cannot                        
                take the place of evidence.@).                                                               
                F.    Analysis                                                                               
                      In this case, as in any appeal from an Examiner’s rejection, the                       
                patentee must demonstrate error in the rejections on appeal.                                 
                      Hereinafter, when we refer to Iriarte by page and line number, the                     
                reference is directed to the English translation of the cited Spanish Utility                
                Model, that is of record.                                                                    
                                        The Anticipation Rejection                                           
                      Claims 1, 8, 49 and 53 have been rejected as anticipated by Iriarte.                   
                Claim 8 depends from claim 1.  Claims 1, 8, and 49 have been argued by the                   
                patentee as a group, based on the assertion that according these claims “a                   


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