ROSENQUIST v. SCHOLL et al - Page 15




               Patent Interference No. 103,812                                                                                  

                      Similarly, Dr. Rosenquist explains (RR, p. 9, paragraph 11):                                              
                      If the hindered phenolic hydroxy group had been reacting with the polycarbonate,                          
                      the product 5249-58 would have been a difunctional comonomer, with the                                    
                      hydroxyl group reacting with a chloro of the phosgene and the carboxyl group                              
                      reacting with an hydroxyl of the bis-phenol A, to form a polyester polycarbonate.                         
                      Therefore, no endcapping function would have been available, and the molecular                            
                      weight of the polymers would all have been many fold higher than shown above                              
                      in                                                                                                        
                      paragraph 10 [wherein the data from page 305 of Dr. Rosenquist's laboratory                               
                      notebook is said to have been reproduced].                                                                
                      Rosenquist does not provide a factual basis for this conclusion.  See In re Brandstadter,                 
               484 F.2d 1395, 1406, 179 USPQ 286, 294 (CCPA 1973) ("the affidavits fail in their purpose                        
               since they recite conclusions and few facts to buttress said conclusions"); Rohm and Haas Co. v.                 
               Brotech Corp., 127 F.3d 1089, 1092, 44 USPQ2d 1459, 1462 (Fed. Cir. 1997) ("Nothing in the                       
               rules or in our jurisprudence requires the fact finder to credit the unsupported assertions of an                
               expert witness."); see also In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965)                      
               (arguments in the brief do not take the place of evidence in the record).                                        
                      In any event, Rosenquist's argument is not persuasive.  It appears that the benzotriazole                 
               compounds disclosed in Narita et al., which perform an endcapping function by binding with the                   
               polycarbonate through the hydroxyl group of the benzotriazole compound, have hindered                            
               hydroxyl groups.  See RX 2, col. 3, lines 20-39.                                                                 
                      Therefore, based on the record before us, Rosenquist has failed to establish, by a                        
               preponderance of the evidence, that an ester linkage within the scope of the count would                         
               necessarily have been formed between the condensation product and the "5249-58" product.                         



                                                              15                                                                





Page:  Previous  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  Next 

Last modified: November 3, 2007