techniques to separate the product from the mixture, including azeotropic
mixtures.
Paper 40, p. 14, p. 18, p. 19. Par& has not provided any evidence supporting these assertions. Par6's
attorney argument can not take the place of evidence lacking in the record. Estee Laud 129 F.3d
at 595, 44 USPQ2d at 1615. The burden of proof is on the moving party. 37 CFR § 1.637(a).
Additionally, Par6 has not proved or explained the motivation to modify the teachings of the
Par6 patents by incorporating the use of an azeotropic mixture as part of the extraction technique
taught by the Par6 patents. The absence of motivation is dispositive of the obviousness question.
GambroLundi ll0F.3datl579,42USPQ2datl383.
d. Obviousness of the Subject Matter of Mengal's Involved Claims
PaWs Preliminary Motion UnderRule 633(a) (Paper40) fails to make out aprima facie case
of unpatentability of Mengal's involved claims. The motion is therefore denied. Since Par6 failed
to make out a prima facie case for relief, it was unnecessary for us to consider Mengal's opposition
(Paper 45) or PaWs Reply (Paper 49).
B. ParVs Preliminary Motions for Benefit
I . Findings of Fact
F 107. Par6 filed three preliminary motions seeking the benefit of the filing dates of the three earlier
applications Papers 41-43.
F 108. Par6's motions for benefit assert, respectively, that U.S. Applications 08/327,638 and
08/012,475 and the earlier Canadian application constitute constructive reductions to practice
of the subject matter of PaWs Claims I and 10, which are alternatives of the count. Paper
43, pp. 2-4; Paper 42, pp. 2-4; Paper 4 1, pp. 2-6.
8. The Proposed Benefit Applications
F 109. Application 08/653,553, forwhichPar6was accorded benefit, is said to be a continuation-in
part of Application 08/327,638, filed 24 October 1994.
F 110. Application 08/327,638, is saidto be a continuation-in-part of Application 08/012,475, filed
2 February 1993.
F 111. Application 08/327,638 became the Par6 947 patent.
F 112. Application 08/012,475 became the Par6 426 patent.
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