setting forth sufficient facts was only one of the noted
deficiencies.
While Wang, in its preliminary motion 1, did not set forth
facts in its facts section to support an argument that the term
"end effector" for holding a surgical instrument was not
described in Green's specification, Wang did set forth facts in
its argument section to support the relief requested. In its
argument section of its preliminary motion, Wang clearly alleges
that Green does.not have written description support for an end
effector for holding a surgical instrument. In the context of an
argument that a term lacks written description support, the
movant has the burden of demonstrating that it is entitled to the
relief sought. In essence, the movant has the burden to prove a
negative, that the substance of a term or phrase that is being
claimed is not described in the specification. The facts
necessary to support such an argument would be that the
specification is lacking a description of what is being claimed.
It may be enough then for the moving party to set forth facts in
support of its argument that a claimed term or phrase is not
supported by the written description, without necessarily culling
through the entire specification to demonstrate that something is
simply not there. Here, that is what Wang did. The mere fact
that Wang put the facts in the wrong location of its preliminary
motion is not sufficient grounds, in this 'case, for dismissal of
4
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