Interference No. 103,586
Brown argue (Brief, page 30) that by the middle of August, 1989, the inventors had
a clear and definite approach of isolating and testing the subject matter of the count. Such
argument is not supported by the evidence of record. Meitzner v. Mindick, 549 F.2d 775,
193 USPQ2d 17 (CCPA), cert. denied, 434 U.S. 854 (1977) (Attorney argument will not
take the place of evidence in the record). Reiss’s testimony only indicates that by mid
August that they had a strategy to obtain a FT enzyme and an assay to determine FT
activity. There is no testimony relating to the performance of an assay that included a test
substance and the identification of whether the substance serves as an inhibitor of FT
activity. Thus, Brown has not established that they were in possession of a complete
conception. Conception must include every limitation in the count, and every limitation
must have been known to the inventor at the time of the alleged conception.
Nor do we find the alleged work of Reiss on September 20, 1989 to establish a
complete conception of the count. As noted earlier, the count requires the presence of a
test/candidate substance in the assay. Here, Brown fails to explain how the enzyme
preparation and the testing of the enzyme for FT activity establishes a complete
conception of the subject matter of the count.
Similarly, Casey’s testimony regarding the August 11, 1989 meeting is not
sufficient in that it does not establish that the inventors had possession of the subject
matter of the count. There is no testimony that the inventor disclosed the subject matter of
the count to Casey. At best, Casey establishes use of ras or ras-peptides as substrates
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