Interference No. 103,357
attorney argument alone. However, it is well settled that argument of counsel cannot take the
place of evidence lacking in the record. Meitzner v. Mindick, 549 F.2d 775, 782, 193 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 prima facie establishes that the limitation in question lacks either express or
inherent support in the involved application. Behr v. Talbott, 27 USPQ2d 1401, 1407 (Bd. Pat.
App. & Int. 1992). Accordingly, the APJ’s decision granting Phillips’ preliminary motion for
judgment is reversed for lack of any evidence.
Priority:
At the oral hearing of October 22, 1998, counsel for the junior party stated to the
effect that Phillips has chosen not to raise priority of invention as an issue in this proceeding.
Whereas 1.) the junior party Phillips has chosen not to contest priority of invention, 2.) the
application of Owen has not been shown by Phillips not to be in compliance with 35 U.S.C. §
112, first paragraph, and 3.) the party Owen enjoys senior party status, Owen is entitled to
prevail herein as the prior inventor.
Judgment
Judgment as to the subject matter of count 1, the sole count, is awarded to
R. Calvin Owen, Jr., Robert A. Gallagher and Robert M. Burley, the senior party. On the present
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