Interference No. 103,534
Burden of Proof
A party filing a motion has the burden of proof to show that it is entitled to the relief
sought in the motion. 37 CFR § 1.637(a). Thus, Phillips has the burden of proof with respect to
its motions.
Opinion
Enablement, Written Description and Best Mode:
We are of the opinion that the junior party Phillips has failed to carry its burden of
establishing that Owen’s involved application does not comply with any of the above
requirements of 35 U.S.C. § 112, first paragraph. Phillips submitted no evidence with its
preliminary motions for judgment, and the motions are based on attorney argument alone. It is 3
well settled that argument of counsel cannot take the place of evidence lacking in the record.
Meitzner v. Mindick, 549 F.2d 775, 782, 198 USPQ 17, 22 (CCPA), cert. denied, 434 U.S. 854,
195 USPQ 465 (1977). A party moving under 37 CFR § 1.633(a) for judgment on the ground
that an opponent’s claims corresponding to the count lack written description support in its
involved application has the burden of submitting with the motion proof which
3 The rebuttal evidence of Owen taken in opposition to the motion is moot, as is the evidence of
Phillips taken in response thereto (surrebuttal), because Phillips submitted no evidence with its
motion and Owen had no evidence to rebut. To the extent the evidence of Phillips is of the type
which should have been filed in support of its motion as its case-in-chief (37 CFR § 1.601(d)), it
is entitled to no consideration. 37 CFR § 1.651(c).
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