Interference No. 102,755
Orikasa, 10 USPQ2d at 2000 n.12. As a result, there is no
evidence entilted to consideration which supports the factual
assertions regarding the existence of an agreement or Nedelk's
belief in the existence of an agreement, as required by
§ 1.639(a) when a material fact is alleged in support of a
motion. In the absence supporting evidence, factual
assertions in the motion are only attorney argument and hence
entitled to no weight. Compare Behr v. Talbott, 27 USPQ2d
1401, 1407 (Bd. Pat. App. & Int. 1992):
[A] party moving under 37 CFR 1.633(a) for
judgment on the ground that an opponent's
claims corresponding to the count lack
written description support in its involved
application has the burden of submitting
with the motion proof which prima facie
establishes that the limitation in question
lacks either express or inherent support in
the involved application. Mere attorney
argument will not suffice. Meitzner v.
Mindick, 549 F.2d 775, [782,] 193 USPQ 17,
22 (CCPA), cert. denied, 434 U.S. 854, 195
USPQ 465 (1977)("the argument that the
Mindick parent application does not
disclose 'true porosity' is unsupported by
evidence. Argument of counsel cannot take
the place of evidence lacking in the
record").
In the following passage, Nedelk seems to be arguing
that his belief in the existence of an agreement is
necessarily implied by the belated filing of the motion:
The APJ's decision further begs the
question as to what incentive Junior Party
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