Interference No. 105,058
Schaenzer v. Knight
demonstrate that the original designation of claims as corresponding or not
corresponding to the count is wrong. Note that the motion is also not supported
by testimony of any technical witness with regard to the significance of any
particular feature shared by Schaenzer's patent claims 3-9 and not present in any
other claim corresponding to the count, or the state of prior art relative to that
particular feature. The motion is unpersuasive as to any reason to change the
initial designation of claim correspondence and thus the burden of proof
applicable to a motion has not been satisfied.
It is well established that argument of counsel cannot take the place of
evidence lacking in the record. Knorr v. Pearson, 671 F.2d 1368, 1373, 213
USPQ 196, 200 (CCPA 1982); Meitzner v. Mindick, 549 F.2d 775, 782, 193
USPQ 17, 22 (CCPA), cert, denied, 434 U.S. 854, 195 USPQ 465 (1977); In re
Lindne , 457 F.2d 506, 508, 173 USPQ 356, 358 (CCPA 1972). That is so
whether or not both parties' counsel jointly make the same argument. The matter
of claim correspondence will not be determined merely by the stated opinion
shared by the parties.
For the foregoing reasons, Joint Preliminary Motion 1 is denied.
19. Also on August 14, 2003, we issued an order for the junior party to show cause
why judgment should not be entered against the j unior party on the ground that the junior party
had failed to file a preliminary statement. The junior party has not responded to that order.
20. In a telephone conference held on August 20, 2003, between the APJ and
respective counsel for the parties, counsel for the junior party asserted (1) that it was not
necessary for the parties to submit evidence to establish the assertions in the preliminary motion,
and (2) that the APJ had indicated in an earlier telephone conference call that he ("the APJ")
would not stand in the way of any settlement agreement between the parties so long as it was
reasonable. See Summary of Telephone Conference - Paper No. 34.
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