Interference No. 103,036
urged in motion no. 3. Since we have entered the party Burroughs
et al.'s amendment in our decision on Issue (3), supra, we will
consider the motion as it relates to reissue claims 13 to 16, 18
to 20, 22 to 33, 35 to 37 and 39 to 51. As the moving party, the
party Cataldi et al. has the burden of proof by a preponderance
of the evidence on the motion. Kubota v. Shibuya, 999 F.2d 517,
519, n.2, 27 USPQ2d 1418, 1420, n.2. Preliminarily, in item (1),
the party Cataldi et al. urges that we give no weight to the34
direct testimony of Dr. Powers because the cross-examination
indicates that his direct testimony is not credible, and that35
the opinions in his direct testimony are legally incompetent.36
The party Cataldi et al. urges that since Dr. Powers could not
The party Cataldi et al. has also filed a miscellaneous motion34
no. 47 to strike, inter alia, certain testimony of Dr. Powers,
because the testimony comprises incompetent legal opinions proffered
by a lay witness. Since we will evaluate Dr. Powers' testimony as to
facts and not as to legal opinions, the motion is dismissed as
unnecessary. Insofar as the motion requests that testimony adduced
by other witnesses be stricken, the motion is dismissed as moot since
we do not rely upon that testimony.
The party Cataldi et al. relies upon its proposed findings of35
fact Nos. (175) to (181) to support a lack of credibility.
The party Cataldi et al. relies upon its proposed findings of36
fact Nos. (182) to (196) to support its assertion of legal
incompetence.
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