preliminary motion 12 . Herman fails to explain how the cited evidence supports the arguments
I
made. For example, Herman argues that:
[A]II the subject matter defined in Counts 1-32, which correspond to claims 1-32 in the
'679 patent and to claims 1-32 in the '960 application, is attributable solely to Herman.
This is evidenced by the 7/9 Herman declaration (See T 22, Counts 1-32, 7/9 Herman
declaration, Exhibit 2021) which sets forth a description of each of Counts 1-32 andhow
each of those counts is disclosed and supported by each of the Initial Disclosure
Document (Exhibit 2006), the Herman NDI (Exhibit 2021) and the 7/5 Halama
declaration (Exhibit 2017) (Paper 29 at 18).
As explained by Judge Lee, it may not be enough to merely make an argument and cite to
some evidence. That is the case here. Herman argues that Herman conceived of all 32 counts in
a conclusory manner and then directs us to certain evidence. Note, however, that conclusory
statements and an invitation to examine a voluminous record are insufficient. In re Swartz, 232
F.3d 862,864, 56 USPQ2d 1703, 1704 (Fed. Cir. 2000). Herman makes no effort to explain, in
its motion, how Herman conceived of every element of each of the 32 counts. Instead, Herman
asks us to look to the evidence and come up with our own theory. However, it is not apparent
what we are looking for, or even what passages or pages to consider. For example, Herman
states that the Halama declaration supports the conception of all 32 counts. Yet, the Halama
declaration provides no discussion of the individual counts. The same can be said about the IDD
and the NDL Herman's citation to evidence without explaining the evidence as it relates to the
argument only confuses and frustrates the reader. It does not set forth a position upon which
Herman can succeed.
There is yet another procedural flaw. Herman impermissibly incorporates arguments into
' See Laitram CoKp. v. Cambridge Wire Cloth Co., 919 F.2d 1579,1584,16 USPQ2d
1929, 1933 (Fed. Cir. 1990) (sanctioning both counsel for repeatedly filing useless briefs).
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