we note that attorney argument alone is insufficient to overcome
Sever’s burden, as 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).
Derivation
To prove derivation, a party must establish conception of
the claimed subject matter and communication of the conception to
the opponent. Price v. Symsek, 988 F.2d 1187, 1190, 26 USPQ2d
1031, 1033 (Fed. Cir. 1993). As with conception, corroboration
is required to support testimony of the communication. Id. at
1196, 26 USPQ2d at 1038. See also Davis v. Reddy, 620 F.2d 885,
889, 205 USPQ 1065, 1068 (CCPA 1980).
Sever has failed to sufficiently demonstrate that Glickman
derived the invention from Sever. Sever has failed to
demonstrate that: (1) Sever communicated the invention to
Glickman; (2) the alleged communication made (to Glickman’s
attorney - Feldman) was corroborated; and (3) Sever’s alleged
conception occurred prior to the alleged communication (Finding
7). The insufficiency of Sever’s Rule 608(b) showing was set
forth in the Order to Show Cause. In response to the Order to
Show Cause, Sever has failed to sufficiently explain how it meets
any of the missing elements (1)-(3).
Instead, Sever argues that the Order to Show Cause
establishes that Glickman stole the invention from Sever. Sever
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