Appeal No. 2007-0196 5
Reexamination Control No. 95/000,009
61 USPQ2d 1523, 1529 (Fed. Cir. 2002) (no review of petition in appeal
proceeding). Congoleum's remedy was a mandamus action seeking review of the
Director's discretionary decision. Hornback v. United States, 405 F.3d 999, 1000-
01, 74 USPQ2d 1538, 1539 (Fed. Cir. 2005). The time for Congoleum to pursue
its equitable remedy passed once the case was submitted to the Board. The
declaration is in the record so we address it.
The examiner accords little weight to Dr. Quarmby's testimony because he is
an employee of the requester. The relationship between a declarant and the
proponent of the testimony is certainly a factor to be considered when assigning
weight to the testimony. E.g., Ferring B.V. v. Barr Labs. Inc., 437 F.3d 1181,
1188, 78 USPQ2d 1161, 1167 (Fed. Cir. 2006) (withheld relationship information
was highly material); Scripps Res. Inst. v. Genentech, Inc., 77 USPQ2d 1809, 1815
n.5 (BPAI 2005). There is no per se rule, however, that a relationship between the
witness and proponent necessarily deprives the testimony of weight and credibility.
While Dr. Quarmby's relationship with Lord gives rise to an inference that
Dr. Quarmby framed his testimony in a manner most favorable to Lord, it does not
follow that his loyalty extends to dishonesty. Indeed, his declaration concludes
with an acknowledgement of his obligation to tell the truth and of his criminal
liability if he does not do so. Moreover, Dr. Quarmby's declaration is largely
directed to statements of testable fact rather than opinion and includes data that
tends to support the testimony.
Dr. Quarmby testifies, at ¶5, that commercial UV radiation-curable coatings
like Chen's are formulated with a photoinitiator "because the resin without the
unprofessional. 37 C.F.R. §§ 1.3 (courtesy and decorum) and 41.1(c) (same).
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