arguments from preliminary motions 6-9 as part of preliminary motion 5 (Paper 51 at 4). Our
decision granting or denying a motion is based solely on the arguments and specific evidence
pointed out to us in the motion before us.
Another example of an improper attempt to incorporate material by reference is found in
Glaxo preliminary motion 5. Glaxo states that “[t]he legal requirements for written description
are summarized in Exhibit 2126”(Paper 51 at 17). We do not consider the arguments presented
in Exhibit 2126 in deciding Glaxo preliminary motion 5 unless the arguments are also presented
in preliminary motion 5.10
Glaxo appears to agree that we should not consider arguments incorporated by reference.
For example, Glaxo states that “[e]ven if the APJ were to find the mere mention of an argument
set out in another motion incorporation [incorporated] by reference, then the APJ may disregard
such statements.” Glaxo argues that its preliminary motion 5 has “all arguments necessary to
prove GWI’s position set out in the body of the motion with appropriate citations to evidence”
(Paper 156 at 4).
Moreover, we have not speculated on what portion of an exhibit a party is relying upon
where the party has not directed us to a specific portion of the exhibit. Thus, where Glaxo
directs us to “the explanations concerning this point in Exhibits 2012 and 2028” (Paper 49 at 11),
we have not speculated on which portions of Exhibits 2012 and 2028 Glaxo intended.
10 Glaxo does not list Exhibit 2126 as an exhibit relied upon in its preliminary
motion 3 arguing that the ‘611 application lacks written description. (Paper 48 at
1).
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