704.06(b)    Statements in Briefs

Factual statements made in a party’s brief on the case can be given no consideration unless they are supported by evidence properly introduced at trial. [ Note 1.] Statements in a brief have no evidentiary value, except to the extent that they may serve as admissions against interest by the party that made them. [ Note 2.]

NOTES:

 1.   See Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1799 (Fed. Cir. 2018) (agreeing with the Board that factual statements made in a brief are not evidence introduced at trial); In re Simulations Publications, Inc., 521 F.2d 797, 798, 187 USPQ 147, 148 (CCPA 1975) ("Statements in a brief cannot take the place of evidence."). Cf. Enzo Biochem, Inc. v. Gen-Probe Inc., 424 F.3d 1276, 76 USPQ2d 1616, 1622 (Fed. Cir. 2005) ("Attorney argument is no substitute for evidence."); Martahus v. Video Duplication Services. Inc., 424 F.3d 417, 27 USPQ2d 1846, 1849 (Fed. Cir. 1993) ("mere attorney arguments unsubstantiated by record evidence are suspect at best"); In re Simulations Publications, Inc., 521 F.2d 797, 187 USPQ 147, 148 (CCPA 1975) (where appellant argued that the magazines at issue deal with unrelated subject matter, the court held that "[s]tatements in a brief cannot take the place of evidence"); Performance Open Wheel Racing, Inc. v. United States Auto Club Inc., 2019 USPQ2d 208901, at *8 n.62 (TTAB 2019) (attorney argument unsupported by any testimony or evidence does not have any probative value).

 2.   See, e.g., Robinson v. Hot Grabba Leaf, LLC, 2019 USPQ2d 149089, at *8 (TTAB 2019) (statements in brief regarding term "grabba" considered admissions), cancellation order vacated on default judgment, No. 0:19-cv-61614-DPG (S.D. Fla. Dec. 17, 2019); Saul Zaentz Co. v. Bumb, 95 USPQ2d 1723, 1725 n.7 (TTAB 2010) (assertions in brief not evidence unless supported by evidence introduced at trial or except as admission against interest); Boston Red Sox Baseball Club LP v. Sherman, 88 USPQ2d 1581, 1587 (TTAB 2008) (broad and general statements in brief regarding marketing experience not supported by any evidence and cannot be accorded evidentiary value or consideration); Jansen Enterprises, Inc. v. Rind, 85 USPQ2d 1104, 1110 (TTAB 2007) (no consideration given to reference in brief to third-party registrations not of record); Schering-Plough HealthCare Products, Inc. v. Ing-Jing Huang, 84 USPQ2d 1323, 1328 (TTAB 2007) (lack of evidence undercuts contentions in brief); DC Comics v. Pan American Grain Manufacturing Co., 77 USPQ2d 1220, 1224 n.5 (TTAB 2005) (by acknowledging in its brief on the case that a label was provided to opposer by applicant, applicant stipulated to its authenticity and to its admission into the record); Baseball America, Inc. v. Powerplay Sports, Ltd., 71 USPQ2d 1847, 1847 (TTAB 2004) (factual assertions in brief not supported by competent evidence not considered); Electronic Data Systems Corp. v. EDSA Micro Corp., 23 USPQ2d 1460, 1462 n.5 (TTAB 1992) (additional revenue figures provided in trial brief not considered); Kellogg Co. v. Pack’Em Enterprises Inc., 14 USPQ2d 1545, 1547 n.6 (TTAB 1990) (reliance in brief on unproven statements made in application), aff’d, 951 F.2d 330, 21 USPQ2d 1142 (Fed. Cir. 1991); BL Cars Ltd. v. Puma Industria de Veiculos S/A, 221 USPQ 1018, 1019 (TTAB 1983); Abbott Laboratories v. Tac Industries, Inc., 217 USPQ 819, 823 (TTAB 1981) (factual statements regarding certain scientific matter which cannot be deemed to be public knowledge not considered); Hecon Corp. v. Magnetic Video Corp., 199 USPQ 502, 507 (TTAB 1978); Plus Products v. Physicians Formula Cosmetics, Inc., 198 USPQ 111, 112 n.3 and 113 (TTAB 1978).

See also In re Teledyne Indus., Inc., 696 F.2d 968, 971, 217 USPQ 9, 11 (Fed. Cir. 1982) (in absence of evidence in the record, mere argument of counsel cannot rebut prima facie case of functionality).

Cf. Martahus v. Video Duplication Services Inc., 3 F.3d 417, 27 USPQ2d 1846, 1849 (Fed. Cir. 1993) (without copies of relevant documentation including relevant portions of application file, not possible to determine validity of opposer’s allegations that applicant took inconsistent position in its application).