MPEP Q & A 213: Can Attorney Arguments Take the Place of Evidence?



Can attorney arguments take the place of evidence?


No, the arguments of counsel cannot take the place of evidence in the record.

Examples of attorney statements which are not evidence and which must be supported by an appropriate affidavit or declaration include statements regarding unexpected results, commercial success, solution of a long-felt need, inoperability of the prior art, invention before the date of the reference, and allegations that the author(s) of the prior art derived the disclosed subject matter from the inventor or at least one joint inventor.

Chapter Details:

The answer to this question can be found in chapter 700 of the MPEP. This chapter covers Examination of Applications.

The answer is from the 9th Edition, Revision 08.2017. Depending on future changes to the MPEP, the question and answer may or may not be applicable in later Editions or revisions.

Section Summary:

This question and answer come from section 716.01(c)  of the MPEP.  The following is a brief summary of section 716.01(c).

716.01(c)   Probative Value of Objective Evidence

This section discusses the probative value of objective evidence. To be of probative value, any objective evidence should be supported by actual proof. Attorney arguments cannot take the place of evidence. This section also discusses opinion evidence.