Interference No. 104,544 Paper149
McDonald v. Miyazaki Page 10
isolated factor with thrombopoietic activity. TSF is probably a TPO within the second
sense, but the record before us provides only a basis for speculation as to whether TSF
is a TPO in the first sense.
[38] Facts 1, 2, and 3 are unhelpful because, while summarizing the thrombopoietic activity
of fragments of the TPO sequence both parties disclose in their specifications, they say
nothing about the identity of TSF and do not correlate the fragments to any TSF
property other than the possession of thrombopoietic activity.
Even if we assume the truth of Facts 1, 2, and 3, they do not say anything about
TSF. For these facts to be relevant we would have to assume that the only things that
have thrombopoietic activity are the disclosed TPOs. McDonald has provided no basis
beyond attorney argument and unsupported inventor testimony for reaching such a
conclusion.
Attorney argument and conclusory statements of fact witnesses are not sufficient
to satisfy the burden of going forward. Biotec Biologische Naturve!packungen v.
Biocorp., Inc., 249 F.3d 1341, 1353, 58 USP02d 1737,1745 (Fed. Cir. 2001).
[39] Facts 5 and 6 are similarly unhelpful because (1) they point unspecifically to large
portions of the record and (2) they assume the fact to be proved: that TSF is the same
as the TPO that the parties have disclosed in their specifications.
It is not the Board's responsibility to scour the record for the evidence that
McDonald might have, but did not, discuss in detail in its brief. Id. at 1353, 58 USPQ2d
at 1745.
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