Interference No. 103,854
in the art would have believed or expected with respect to the TNF binding activity of TBP
trimers compared to other TBP multimers at the time the application was filed. Nor do these
“facts,” standing alone, demonstrate “superior results” for the TBP trimer compared to the
TBP dimer, TBP tetramer, or any other multimer encompassed by Smith claim 39 and
Wallach claim 1, corresponding to the count. It is only attorney argument which makes the
conclusions presented in the brief, and such argument lacks probative value. In re Payne,
606 F.2d at 315, 203 USPQ at 256; Meitzner v. Mindick, 549 F.2d at 782, 193 USPQ at 22;
In re Pearson, 494 F.2d at 1405, 181 USPQ at 646.
Wallach argues that senior party Smith does not dispute “any of the statements of
material fact set forth in the Wallach preliminary motion, and therefore they may be taken as
conceded.” Brief, pp. 20 and 34. We find this argument unconvincing.
Smith’s failure to oppose Wallach’s preliminary motion does not relieve the moving
party of its burden of proving its case. In the case before us, the burden is on Wallach, the
movant, to prove, by a preponderance of the evidence, that TBP trimers show unexpected
results compared to other members of the genus of multimers described in Smith claim 39
and Wallach claim 1, corresponding to the count. 37 C.F.R. § 1.637(a). Here, as discussed
above, we do not find that Wallach has met that burden. Nor does the failure of a party to
oppose a motion mean that the statements therein are correct. To the contrary, the record
here shows that in the settlement agreement between the parties, Smith agreed not to
oppose Wallach’s preliminary motion. Paper No. 49, p. 2; Paper No. 53, p. 2. We point out
that such agreements do not constitute a concession which is binding on the PTO.
Claim 6
Claim 6 is directed to a multimer which comprises at least one monomer having the
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