Interference No. 103,854
one of ordinary skill in the art would have expected at the time their application was filed.
Nor has Wallach provided any objective evidence of an unexpected result for the claimed
heteromultimers as compared to the homomultimers encompassed by Smith claim 39 and
Wallach claim 1, corresponding to the count. On this record, we have only attorney
argument. As discussed above, arguments of counsel cannot take the place of objective
evidence. In re Payne, 606 F.2d at 315, 203 USPQ at 256; Meitzner v. Mindick, 549 F.2d at
782, 17 USPQ at 22; In re Pearson, 494 F.2d at 1405, 181 USPQ at 646.
Wallach argues that they have provided physical evidence by means of the Pinckard
publication that “TNF is capable of concomitantly interacting with p55 and p75” and, thus,
their position does not rest on mere attorney argument. Brief, p. 34. We disagree.
Even if we assume, arguendo, that Pinckard’s disclosure that cultured and primary
murine cells exposed to murine TNF are capable of concomitantly interacting with p55 and
p75, is a “fact,”9 we do not find that a “fact,” which was disclosed six years after the filing date
of the Wallach specification, provides evidence as to what one of ordinary skill in the art
would have expected with respect to TBP heterodimers at the time the invention was made.
Moreover, we do not find that this “fact,” standing alone, demonstrates superior TNF binding
activity for the heteromultimer as compared to the homomultimers encompassed by Smith
claim 39 and Wallach claim 1, corresponding to the count. Again, it is only attorney
argument which makes the conclusions presented in the brief, and we accord such argument
little evidentiary weight. In re Payne, 606 F.2d at 315, 203 USPQ at 256; Meitzner v.
9 We point out that Wallach is relying on Pinckard’s disclosure with respect to the
response exhibited by specific murine cells; i.e., cultured and primary murine cells
which have been exposed to murine TNF. Untreated and human TNF-treated cells did
not interact simultaneously with both p55 and p75. Since claim 6 is not directed to the
murine cells described by Pinckard, it does not appear that Wallach’s arguments
address a limitation present in claim 6.
10
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