Interference No. 102,668
Nevertheless, while the copy of the amendment is not
being suppressed, the portion on which Cavanagh's § 1.608(b)
affidavit relies, i.e., the statement that he invented the
subject matter set forth in the three counts proposed therein,
is entitled to weight only if corroborated by other evidence.
As for the factual allegations in the reply brief, to the
extent they lack support in the evidence of record they are
entitled to no weight, because they constitute mere attorney
argument, which cannot take the place of evidence. Meitzner
v. Mindick, 549 F.2d 775, 782, 193 USPQ 17, 22 (CCPA), cert.
denied, 434 U.S. 854, 195 USPQ 465 (1977).
Cavanagh's priority case
Inasmuch as Cavanagh's involved application was
filed prior to issuance of McMahon's involved patent,
Cavanagh's burden of proof on the issue of priority is by a
preponderance of the evidence. 37 CFR § 1.657(b). In order
to satisfy this standard, the evidence must demonstrate that
it is more likely than not that the alleged acts actually
occurred. See Bosies v. Benedict, 27 F.3d 539, 541-42,
30 USPQ2d 1862, 1864 (Fed. Cir. 1994) (the preponderance of
the evidence standard requires the finder of fact to believe
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