Interference No. 102,668
by a witness in an affidavit or during oral deposition shall
be discussed with particularity by a witness." The basis for
this rule is discussed in Davis v. Uke, 27 USPQ2d 1180, 1185
(Comm'r Pats. & Trademarks 1993):
[T]he significance of documentary and other exhibits
must be discussed with particularity by a witness
during oral deposition or in an affidavit. See
Notice of Final Rule, 49 Fed. Reg. 48416, 48428
(Dec. 12, 1984), reprinted in 1050 Off. Gaz. Pat.
Office 385, 397 (Jan. 29, 1985); Popoff v. Orchin,
144 USPQ 762 (Bd. Pat. Int. 1963) (unexplained
experimental data should not be considered);
Chandler v. Mock, 150 F.2d 563, 66 USPQ 209 (CCPA
1945) (records standing alone were held to be
meaningless); and Smith v. Bousquet, 111 F.2d 157,
45 USPQ 347 (CCPA 1940) (unexplained tests in
stipulated testimony are entitled to little weight).
See also In re Borkowski, 505 F.2d 713, 184 USPQ 29
(CCPA 1974) and Triplett v. Steinmayer, 129 F.2d
869, 54 USPQ 409 (CCPA 1942).
However, Moore's testimony about the tests described in the
memorandum from Cavanagh (Exhibit G) is offered to show that
Exhibit C represent a successful test. Specifically, Moore
testified that he has "compared the invention described in the
[Cavanagh] patent application to the invention described in
that memorandum and found them to be one in [sic, and] the
same" (CR 11, para. 4) and that
[b]ased on the design information and the
corresponding testing presented in the September
16th memorandum, it is my expert opinion as former
Director of Engineering, that the above referenced
- 24 -
Page: Previous 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Next
Last modified: November 3, 2007