Appeal No. 2006-1658
Application No. 09/801,617
To show diligence, Appellants merely rely on the conclusory statements made in
the declarations and the Briefs without providing any factual evidence in support thereof.
Appellants’ declarations merely indicate that prior to February 22, 2001, the draft patent
application was completed, and that Appellants executed and filed the formal application
papers on March 08, 2001. Further, as noted above, Appellants argue that during the
stated 14-day period (from just prior to February 22, 2001 to March 8, 2001,) they were
preparing, proof reading and reviewing the application papers.
While the declarations and the exhibits are in the form of testimonial and
corroborating evidence, arguments of counsel are not evidence. See, e.g., Meitzner v.
Mindick, 549 F.2d 775, 782, 193 USPQ 17, 22 (CCPA 1977); In re Pearson, 494 F.2d
1399, 1405, 181 USPQ 641, 646 (CCPA 1974). Further, Appellants have not
“account[ed ] for the entire critical period by showing either activity aimed at reduction
to practice or legally adequate excuse for inactivity.” 3 D Chisum, Patents, §10.07 at 10-
120 (1986). Consequently, we find no error in the Examiner’s stated position, which
concludes that Appellants’ Rule 131 declarations and accompanying exhibits have not, by
any satisfactory evidence of facts, established due diligence from prior to the February
22, 2001 filing date of the Weiss reference to the March 08, 2001 filing date of
Appellants’ claimed invention.
6
Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: November 3, 2007