Interference No. 104,067
material was modified, e.g., pulverized, during the machine's
operation and (2) whether the material is pulverized rubber and
metal stranding.
Kramp argues that the photographs show "pulverized rubber
material" which has been discharged from the machine pictured
therein. Brief, page 8. However, without the support of
evidence in the record, Kramp's arguments are insufficient to
establish that the machine worked for its intended purpose. See
In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965)
(arguments in the brief do not take the place of evidence in the
record); Meitzner v. Mindick, 549 F.2d 775, 782, 193 USPQ 17, 22
(CCPA), cert. denied, 434 U.S. 854 (1977) (arguments of counsel
cannot take the place of evidence lacking in the record).
We note that in an affidavit Mr. Chard states that the
photographs disclose "a functional, constructed embodiment of the
'Tire Grinder' as described in Jr. Party Kramp's application now
involved in this interference." Chard affidavit dated January
28, 2000, paragraph 6. However, Mr. Chard fails to identify the
function being performed in the photographs by the machine
pictured.
Finally, even if we accept Kramp's argument that "pulverized
rubber material" was discharged from the machine pictured in the
I I
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