Interference No. 103,169
Timmons citing CR 1778-1874 (CRB, paragraph bridging pages 2-3) and particularly the
Timmons testimony of December 9, 1983, pages 9-12 (CR 18: 1780-1783) and March 23,
1994, pages 2-7 to 2-8 (CR 18: 1884-1885), and CR 18:1807 and 1820-1821 for
corroboration of the existence of the proposal on January 23, 1983, when it is said that
Timmons signed the cover letter.
Initially, we point out that first time reliance upon evidence for corroboration in a
reply brief, when none was offered in junior party’s brief, is inappropriate because junior
party has the initial burden to establish priority in its brief (37 C.F.R. § 1.657(a)). Inclusion
of new arguments and evidence in a reply brief does not provide senior party with an
opportunity to respond. Suh v. Hoefle, 23 USPQ2d 1321, 1323 (Bd. Pat. App. & Int.
1991). It is also inappropriate for Chenevey et al. to refer broadly to Chenevey’s and
Timmons’s oral testimony without any specific citation to pages and
lines for each alleged fact. It is not our obligation to search the record to support attorney
argument. Hence, the new arguments and evidence are not entitled to consideration. On
this record, Chenevey et al. have not established conception.
However, if the additional pages of CX 1 and Timmons’s testimony (CR 18: 1780-
1783, 1884-1885, 1820 1821 and 1807) had been submitted with the Chenevey et al.
brief, we would have found that Chenevey et al. had established, by a preponderance of
the evidence, a date of conception no later than January 31, 1983.
CX 1, the contract proposal, is a multi-component document, comprising a cover
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