Tuesday, February 04, 2014

PTAB affirms rejections in Ex parte Frisa

from Ex parte Frisa

The Examiner has presented a sound rationale as to why a person of ordinary skill in the art would have modified the 3D ultrasonic diagnostic apparatus of Hashimoto with the teachings of Cortinovis to arrive at the claimed method (see, e.g., Ans. 5-6 and 26-35), and thus has provided sufficient evidence to support a prima facie case of obviousness. Having done so, the burden shifted to Appellant to provide evidence that the claimed combination of known elements would do more than yield predictable results. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). Appellants have not met this burden.

Relating to attorney argument

See Becton, Dickinson and Co. v. Tyco Healthcare Grp, LP, 616 F.3d 1249, 1260 (Fed. Cir. 2010) (“Unsupported attorney argument, presented for the first time on appeal, is an inadequate substitute for record evidence.”); Gemtron Corp. v. Saint-Gobain Corp., 572 F.3d 1371, 1380 (Fed. Cir. 2009) (unsworn attorney argument is not evidence and cannot be used to rebut record evidence); see also In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir 1997) (attorney argument was not the kind of factual evidence required to rebut a prima facie case of obviousness) and In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) (“Attorney’s argument in a brief cannot take the place of evidence”).


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