Appeal 2007-2893
Application 10/818,885
this assertion or the arguments based on this assertion (id.). It is well settled
that argument by counsel cannot take the place of evidence. In re Cole, 326
F.2d 769, 773, 140 USPQ 230, 233 (CCPA 1964); In re Geisler, 116 F.3d
1465, 1471, 43 USPQ2d 1362, 1365 (Fed. Cir. 1997).
On reflection, it is our opinion that the cooking container of
Appellant’s claim 1 would have been prima facie obvious to a person of
ordinary skill in the art at the time the invention was made in view of the
combination of Proctor and Park.
Claim 2 depends from and further limits the cooking container of
claim 1 to one of a volume of air or vacuum filling the remaining volume of
the cavity. As discussed above, Proctor teaches that the heat-transfer oil is
advantageously heated prior to sealing the liquid between the two walls of
the container so that a vacuum will be created as the liquid cools within the
sealed device (Proctor, col. 4, ll. 58-61). Accordingly, we find that
Appellant’s claim 2 would have been prima facie obvious to a person of
ordinary skill in the art at the time the invention was made in view of the
combination of Proctor and Park.
Claim 4 depends from and further limits the shell and the second heat-
conductive plate of claim 1, requiring that they be composed of the same
material. Claim 5 depends from and further limits the material of claim 4 to
stainless steel. Proctor teaches a cooking container wherein both the inner
and outer walls are made of stainless steel (Proctor, col. 4, ll. 54-57).
Accordingly, we find that Appellant’s claims 4 and 5 would have been prima
facie obvious to a person of ordinary skill in the art at the time the invention
was made in view of the combination of Proctor and Park.
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