Appeal 2007-2888
Application 11/017,602
embodiment with only wall elements; compare to col. 4, ll. 44-53, which
describes an embodiment further comprising the frame insulating elements).
Thus, contrary to Appellant’s argument, the mass barrier could be attached
to Sloan’s frame members in the manner described by Yoerkie because
Sloan does not describe insulated frame members in all its embodiments.
Consequently, we do not agree that the purpose of Sloan would be ruined by
combining it with Yoerkie as asserted by Appellant (Appeal Br. 10).
Appellant also asserts: “Attempting to attach a relatively heavy noise
attenuating blanket of Yoerkie . . . will certainly not be supported by the
‘thin moisture impervious flexible material of bag 36.’ Bag 36 would thus
tear or be otherwise damaged by the weight of the noise attenuating blanket”
(Appeal Br. 10) (emphasis added).
Appellant has mischaracterized Yoerkie. Yoerkie specifically states
that an “object of the invention is to provide an improved sound absorbing
blanket for reducing noise in an aircraft cabin which is lightweight”
(emphasis added) (Yoerkie, at col. 2, ll. 60-63). Thus, the facts do not
support Appellant’s characterization of the blanket as “heavy.” Moreover,
Appellant has not provided evidence to support their hypothesis that
Yoerkie’s blanket, when attached to Sloan’s insulating element, would rip
the plastic. Arguments of counsel cannot take the place of evidence lacking
in the record. Estee Lauder Inc. v. L'Oreal, S.A., 129 F.3d 588, 595, 44
USPQ2d 1610, 1615 (Fed. Cir. 1997).
Appellant also argues that Allen “is not directed to a sound
attenuating blanket but rather to a solid panel structure” which would make
its combination with Sloan improper (Appeal Br. 10). However, Allen is
relied upon by the Examiner for its teaching of a sound barrier comprising
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