Appeal 2007-0725
Reexamination Control 90/006,785
Patent 5,073,484
original color in the zone to a reduced extent.” (Br. at 10). Patentee has not
directed us to objective evidence sufficient to show that a user could not
detect whether or not dye has been displaced in the Weiss “reaction zone”.
The argument of counsel is not evidence.
We have reviewed the Declaration of Dr. Gordon, who identifies
himself as a “Senior Research Fellow in the Volwiler Society at Abbott
Laboratories [an exclusive licensee of the ‘484 patent], and also a licensing
manager.” (Gordon’s Declaration at ¶1).
Dr. Gordon’s testimony essentially repeats many of the arguments of
counsel and does not explain why, or even contend that, a user could not
detect whether or not dye has been displaced in the reaction zone.
As to its second argument, Patentee states that “it is questionable as to
whether the Weiss patent provides an enabling disclosure and whether the
Weiss method has ever been successfully put to use.” (Br. at 12). Patentee
directs us to no objective evidence showing that Weiss lacks sufficient
enablement to be an anticipatory reference. The statement said to have been
made by the Assignee of the Weiss patent, i.e. that the Weiss test is “difficult
to manufacture and susceptible to irreproducibility….” (Br. at 11), does not
refer to any particular test within those disclosed by Weiss or state that any
particular test cannot be reproduced. The statement does not provide a
discussion of the Weiss Specification or state or explain why the Weiss test
will not work. The statement at most indicates that reproduction may be
difficult without providing a reason why.
Dr. Gordon testifies that he “seriously doubt[s] that the Weiss assay
would actually work” and “has never seen one in use in all [his] years
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