Interference No. 103,169
15
count. Thus, counsel’s statement constitutes attorney argument.
In response to the Baars et al. argument that Chenevey et al. had not established a
?corroborated conception,” Chenevey et al., in their reply brief, offer, in addition to those
pages cited in their brief, pages 1, 4, 6-7 and 15-18 of Exhibit 1 (CX 1) as evidence of
conception of the subject matter of the count (CRB, page 8).
Chenevey et al. argue that ?[T]he written evidence of conception is believed quite
convincing in view of Mr. Chenevey’s experience and complements his oral testimony in
this case” (CRB, page 7). In addition, Chenevey et al. rely upon the testimony of
15The requirements for the parties’ briefs are set forth in 37 C.F.R. § 1.656(b). In
particular, 37 C.F.R. § 1.656(b)(2) requires:
[A] statement of the issues presented for decision in the
interference and ...
37 C.F.R. § 1.656(b)(4) requires:
[A]n argument, which may be preceded by a summary, which shall contain
the contentions of the party with respect to the issues to be decided, and the
reasons therefor, with citations to the cases, statutes, other authorities, and
part of the record relied on. [Emphasis added.]
Conclusions of fact and law made without appropriate citation to the record or citation of
authority will be taken as attorney argument. Compare Ex parte McCullough, 7 USPQ2d
1889, 1892 (Bd. Pat. App. & Int. 1987); Ex parte Meyer, 6 USPQ2d 1966, 1968-9 (Bd.
Pat. App. & Int. 1988); In re Mehta, 347 F.2d 859, 863-864, 146 USPQ 284, 289 (CCPA
1965). Attorney argument cannot take the place of evidence lacking in the record.
Meitzner v. Mindick, 549 F.2d 775, 782, 193 USPQ2d 17, 22 (CCPA ) cert. denied, 434
U.S. 854 (1977). This means that a specific citation to pages and lines of the record for
each alleged fact is necessary. It is not enough to refer to “related testimony” or a range of
pages as supporting a group of alleged facts. The Board is not required to search the
record for facts which might support a party's position. References in the brief to
supporting testimony should include the name of the witness as well as the page(s) and
lines where the testimony appears in the record.
22
Page: Previous 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Next
Last modified: November 3, 2007