Interference No. 103,029
proven, clearly constitutes a communication under the case law
of derivation.
We are also mindful that an opposing party may
delay, by various procedural maneuvers, a request for
additional discovery or stipulations to make the time period
between the opening of the preliminary statements and the
filing of a request to amend a preliminary statement unduly
long. We have no evidence that such a situation has occurred
in this case. However, the fact that stipulations were filed,
which the senior
party states necessitated the request to amend the preliminary
statement, blunts the opposition’s arguments based merely on
the length of time that has passed after the preliminary
statements have been opened or that certain witnesses have
already been deposed.
With these facts in mind, it is our conclusion, that
Barnhouse was not negligent in preparing the original
preliminary statement, and that due care was exercised in the
preparation thereof. We further are of the view that even
with the exercise of this due care, the omission of the claim
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