Interference No. 104,190
some work. PR189. Or the device cut, but was not up to
commercial
standards. PR371. In our view, this testimony does not jibe
with the explicit evidence of poor mechanical cut recorded in
O’Brien’s summary of the test.
It is our determination that the contemporaneous
report by O’Brien and circumstantial evidence of a failed
design are more credible in this context. Actions do, indeed,
speak louder than words in this instance. While we would not
require the device to cut to commercial standards, we do
recognize that such devices are required to cut with literally
surgical precision, and more than a mere capacity to nibble
away at the tougher tissues of the viscera would be required
as evidence of a successful test. Moreover, there is no
evidence establishing that to make a laminated blade that
would cut with surgical accuracy is a trivial exercise
requiring only ordinary skill. In short, we believe our
findings with respect to the conflicting evidence regarding
the test comport with the conclusion reached by Everest at the
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