Interference No. 103,203
enablement requirement of § 112, first paragraph, of an invention within the scope of the
count. It is well established that such arguments cannot take the place of objective
evidence and, thus, we accord them little evidentiary weight. In re Payne, 606 F.2d 303,
315, 203 USPQ 245, 256 (CCPA 979); Meitzner v.
Mindick, 549 F.2d 775, 782, 193 USPQ 17, 22 (CCPA), cert. denied, 434 U.S. 854
(1977); In re Pearson, 494 F.2d 1399, 1405, 181 USPQ 641,646 (CCPA
1974)(“Attorney’s argument in a brief cannot take the place of evidence”).
Second, in order for Lawn et al. to be accorded the benefit of their earlier-filed
applications, said applications must provide an enabling disclosure of a species within the
scope of the count. As discussed above, Count 2 is directed to a nucleotide sequence
encoding the mature human tissue factor protein of Figure 1 [of the Edgington patent].
Count 2 does not require the use of a specific expression vector, specific starting material
for a cDNA library, or the purification of the recombinant tissue
factor protein. Accordingly, we do not find that Edgington et al.’s arguments with respect to
these issues are directed to limitations described in the count.
Edgington et al. argue that Lawn et al. do not describe the best mode for carrying
14
out the claimed invention in the earlier-filed applications. Edgington Brief, Paper No.
14See footnote 13, supra, with respect to Edgington et al.’s arguments that the earlier-filed
applications do not disclose a best mode for carrying out the claimed invention. We have interpreted this
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