Can attorney arguments replace evidence in patent cases?
No, attorney arguments cannot replace evidence in patent cases. The MPEP clearly states:
“The arguments of counsel cannot take the place of evidence in the record.” (MPEP 716.01(c))
This principle is based on the case In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965). Attorney statements regarding aspects such as unexpected results, commercial success, or inoperability of prior art must be supported by appropriate affidavits or declarations to be considered as evidence.
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