Interference No. 103,854
arguments of counsel as to what Peppel discloses and what one of ordinary skill in the art
would have expected from reading the publication. 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 1979); 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”). Accordingly, we do not find Wallach’s
specification, the Peppel publication and arguments of counsel sufficient to establish that
TBP trimers have “significantly superior” TNF inhibitory activity compared to TBP dimers,
TBP tetramers or any other multimer encompassed by Smith claim 39 and Wallach claim 1,
corresponding to the count.
Wallach contends that the statements in the brief are based on documentary
evidence. Brief, pp. 20-21. Wallach argues that the disclosure in their specification “that
TNF-Rs exist in aggregated form in cells exposed to TNF is supported by the
experimentation in example 1 of the ... patent. This is physical evidence and not mere
attorney argument.” Id., sentence bridging pp. 20-21. Wallach further contends that “[t]he
data and statements of Peppel are evidence properly of record in this case and not mere
attorney argument.” Id., sentence bridging pp. 21-22. We find these arguments misdirected.
Even if we assume, arguendo, that Wallach’s statements that (i) the disclosure in the
specification that TNF-Rs exist in aggregated form in cells exposed to TNF, and (ii) Peppel
demonstrates an increase in the effectiveness of TBP dimers compared to TBP monomers,
are “facts,” the burden rests with Wallach to provide objective evidence as to what one of
ordinary skill in the art would have expected based on these alleged facts. This has not been
done. These so-called “facts,” standing alone, do not demonstrate what one of ordinary skill
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