Interference No. 103,625
the count [sic: claim] because (1) the proteins of ‘072 and ‘089 have about the same
molecular weight, about 42,000 daltons and bind specifically with TNF" ; 2) they are
o
obtained from the “same protein source” i.e., urine from patients with fever ($38 C), and
(3) the same methods are used to isolate and purify the protein as the proteins now
claimed. LeMaire thus conclude that “the necessary and only reasonable construction to
be given LeMaire’s disclosure in the German application ‘072 by one of ordinary skill in the
art is one that lends clear support to a protein having an N-terminal acid sequence set forth
in the count [sic: claim]”.
We do not find LeMaire’s arguments persuasive. In attempting to establish
that the earlier filed applications provide the requisite descriptive support for the LeMaire
claims, LeMaire, through their counsel, argue that the disclosed proteins of the earlier filed
applications contain these now claimed sequences because they were derived from the
o
same source, urine of patients having a fever ($38 C), and by the same method of
isolation and purification. These arguments comprise unsupported attorney argument. It is
well settled that attorney argument will not take the place of evidence in the record.
Meitzner v. Mindick, 549 F.2d 775, 782, 193 USPQ2d 17, 22 (CCPA), cert. denied, 434
U.S. 854 (1977). LeMaire has submitted no testimony as to what the ‘072 and ‘089
applications would reasonably convey to one of ordinary skill in the art at the time of filing
of those applications vis-a-vis the N terminus amino sequences now claimed by the
LeMaire involved patent. Behr v. Talbott, 27 USPQ2d 1401 (Bd. Pat. App. & Int. 1992).
LeMaire also did not submit any proof that prima facie establishes that the disclosed
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