lumen catheter. The bench testing and cutting of cow liver do
not demonstrate to the trier of fact that the three-lumen
catheter device would work for its intended purpose, e.g., that
it would work in a body passage, or that the three-lumen catheter
device was so similar to the two-lumen catheter device that
testing of the three-lumen catheter device in a body passage was
not necessary.
Rowland cites to case law for the proposition that for
simple devices testing is not necessary. However, based on this
record we do not know that the three-lumen catheter device is so
simple that testing is not required. Rowland has not submitted
evidence sufficient to demonstrate that the three-lumen catheter
is so simple in construction and operation that no testing is
required in light of the knowledge that a two-lumen catheter
works. Argument of counsel cannot take the place of evidence
lacking in the record. Estee Lauder Inc. v. L'Oreal, S.A., 129
F.3d 588, 595, 44 USPQ2d 1610, 1615 (Fed. Cir. 1997).
For these reasons, Rowland has failed to demonstrate by a
preponderance of the evidence that it reduced the invention of
the count to practice by 11 October 1991 as alleged.
Alternatively, even if Rowland's 11 October 1991 activities
do amount to a reduction to practice, Rowland has failed to
negate the inference that it did suppress or conceal its
invention.
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