Appeal No. 1995-1977
Application 07/669,403
murine embryonic stem cells. First, the morphology of the ungulate embryonic
stem cells differs from that of murine embryonic stem cells. Therefore,
Appellants argue, a prior art reference to “stem-like” cells is actually evidence
that the cells isolated were not embryonic stem cells. Second, the ungulate
embryonic stem cells isolated by Appellants were slow-growing, in contrast to the
fast-growing murine embryonic stem cells. Therefore, Appellants argue, a
reference disclosing fast-growing ungulate embryonic stem cells does not
disclose the claimed invention. Third, Appellants argue that the cells must be
capable of being maintained in an undifferentiated state through many passages
to be considered embryonic stem cells of the claimed invention. Finally,
Appellants argue that the cells must be capable of differentiation into cells from
all three germ layers o f the early embryo in order to be considered embryonic
stem cells of the claimed invention.
These arguments are not persuasive. Appellants have presented no
objective evidence to support their position that true ungulate embryonic stem
cells share the properties of the cells disclosed in the instant application, and do
not have the properties of prior art cells. Appellants have provided no evidence
that persons of skill in the art of developmental biology accept the four criteria set
out in the Appeal Brief as defining true ungulate embryonic stem cells.
“Attorney’s argument in a brief cannot take the place of evidence.” In re
Pearson, 494 F.2d 1399, 1405, 181 USPQ 641, 646 (CCPA 1974).
The record shows only that ungulate embryonic stem cells isolated by the
method disclosed in the instant application have the properties alleged in the
Appeal Brief to define ungulate embryonic stem cells. That is, the evidence of
record is consistent with the cited properties being the result of isolation of the
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