Interference No. 103,169
and date. They must be explained even if they contain a label and a date. Further, 37
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CFR §1.671(f) requires a witness to explain the entries on the various pages of a
notebook/exhibit. This explanation provides the opponent party and the Board a basis on
which to determine whether the witness's testimony is supported by contemporaneous
documentation, or whether a party is relying upon the witness's oral testimony and whether
corroboration is necessary. Herein, Chenevey et al. offer no testimony to authenticate
Exhibit 1 (CX 1) and to corroborate the Chenevey et al. alleged conception. Counsel’s
conclusory statement, in the Chenevey et al. brief, that the document shows each
specified limitation of the count is unsupported by any reference to the record which
provides an explanation as to how the relied upon portions of the document satisfy the
(...continued)
witness, but not by the uncorroborated testimony of the party on whose behalf it is offered
in evidence. Hence, a witness must properly identify the exhibit as to what it is as well as
to explain the witness's relationship to the document in question. In addition, authenticity
of an exhibit must be established both as to subject matter (content) and time. Extrinsic
evidence of authenticity as a condition precedent to admissibility is not required for self-
authenticating evidence. See FRE 902. Notebooks are not self-authenticating. Id.
1437 CFR § 1.671(f) states that ?[t]he significance of documentary and other
exhibits shall be discussed with particularity by a witness during oral deposition or in an
affidavit.” See Notice of Final Rule at 48447, column 3, 1050 Off. Gaz. Pat. Office at 416.
In 1984 the rules were amended to require the particularized explanation of material in
non-self authentication documents. The commentary explained that ?[B]y providing in the
rules that documentary evidence must be explained, the PTO hopes to save both parties
and the Board considerable difficulty in presenting and evaluating evidence.”
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