Appeal No. 94-1573 Paper No. 24
Application No. 07/552,744 Page 5
project. Counsel explains the omission of co-applicant
Montgomery from the paper as an oversight (Paper No. 14 at 12-
13). Counsel argues that arguments in the record explaining
why the authors of the reference article were not the
inventors should be sufficient to overcome the 102(a)
rejection (Paper No. 14 at 13).
"It was incumbent ... on [Appellants] to provide a
satisfactory showing which would lead to a reasonable
conclusion that [they are] the [true] inventor[s]" of the
subject matter disclosed in the article and claimed in the
application. In re Katz, 687 F.2d 450, 455, 215 USPQ 14, 18
(CCPA 1982). Such showings should be in the form of sworn
affidavits or declarations by the applicants filed in
accordance with 37 CFR §§ 1.131 and 1.132. No such
declarations or affidavits are currently of record. The 2
argument of counsel cannot take the place of evidence lacking
in the record. E.g., Estee Lauder Inc. v. L'Oreal, S.A.,
129 F.3d 588, 595, 44 USPQ2d 1610, 1615 (Fed. Cir. 1997). The
2Appellants state in their Brief on Appeal filed 26 July
1993 that they will file declarations under 37 CFR § 1.131 or
§ 1.132 "within the next thirty days" (Paper No. 14 at 13),
but there is no evidence of record that such declarations were
ever received.
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