Can attorney arguments replace evidence in patent cases?

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Source: FAQ (MPEP-Based) BlueIron Update: 2024-09-10 10 Rules 5 Related FAQs This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice. 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. Related Rules from the Manual of Patent Examining Procedure 10 rules Collapse Unexpected Results Must Be Supported by Experimental Data MPEP 716.01(c) Applicant Arguments Cannot Substitute for Evidence MPEP 716.01(c) Prohibited Blocking Patent Can Diminish Commercial Success Evidence MPEP 716.01(c) Oath or Declaration Required for Traversing Rejections MPEP 716 Required Publications May Serve as Evidence for Facts at Issue MPEP 716 Recommended Declaration Can Replace Affidavit in Patent Applications MPEP 716 Affidavit or Declaration Under 37 CFR 1.132 Must Follow Form Paragraph 7.66 MPEP 716 Required Affidavit or Declaration Under 37 CFR 1.132 Must Follow Form Paragraph 7.66 MPEP 716 Required Blocking Patent Diminishes Commercial Success Evidence MPEP 716.01(c) Permitted Blocking Patent Can Discount Commercial Success MPEP 716.01(c) Permitted Other Related FAQs 5 FAQs Collapse What types of objective evidence are considered probative in patent examination? What is the role of publications and printed matter as evidence in patent examination? What is the significance of attorney arguments in patent examination? What is the significance of affidavits or declarations in patent examination? What is the significan...