Rowland argues that by 30 January 1994, physicians had
received the three-lumen catheter device and that between January
30, 1994 and February 8, 1994, one of the physicians, Dr. Carr
Locke, evaluated each patient to determine if he could use the
device (Paper 96 at 23). However, Rowland fails to direct us to
evidence that supports this assertion. We do not know that
physicians received the three-lumen device by 30 January 1994.
We further do not know that Dr. Carr-Locke evaluated patients to
determine if the three-lumen catheter could be used on a
particular patient. Rowland relies on attorney argument alone in
support of its assertions. As stated above, argument of counsel
cannot take the place of evidence lacking in the record.
Accordingly, Rowland has failed to demonstrate that it was
diligent from a time prior to Weaver's 31 January 1994 effective
filing date until its 8 February 1994 reduction to practice.
Weaver's motion to supipress Rowland's exhibits
Weaver seeks to suppress the following Rowland exhibits from
consideration: RX2033, RX2035, RX2036, and RX2037.
Weaver failed to attach its objections to its motion to
suppress Rowland's evidence (See Paper 1 at § 48). Accordingly,
the motion is dismissed on that grounds alone.
Nonetheless, we will consider Weaver's motion on the merits.
We find it unnecessary to consider the specific objections to the
admissibility of Rowland's exhibits 2035, 2036 and 2037, since
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