Appeal No. 94-2232
Application 07/888,367
supervision and direction of Kroger.” Id. at 371. The Board
stated at 371-372:
If this were all the evidence in this case, then
we would be constrained to agree that Kroger et al are
the inventors and that Knaster is not a coinventor.
The difference in Kroger was that the record included
additional evidence which showed that (1) Knaster refused to
sign a
declaration that he was not a coinventor, and (2) Knaster
wrote
a letter to the PTO declaring himself to be a coinventor of
the invention claimed.
In this case, we have only an examiner’s speculation
that Lee must be a coinventor of the subject matter claimed in
this application because of the repeated use of the pronoun
“we” in the later published papers which Lee co-authored and
coinventor Raikhel’s reference to “Dr. Lee” in her declaration
(Supplemental Examiner’s Answer, pp.2-4). However, the
examiner may recall that the PTO was expressly cautioned
against just this type of speculation in In re Katz, 687 F.2d
at 455-56, 215 USPQ at 18 (emphasis added):
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