Exhibit 2032 is a letter dated 10 January 1994 to Dr.
Anthony Bohorfoush, M.D. of Froedtert Memorial in Milwaukee,
Wisconsin from Chris Rowland. Exhibit 2033 is entitled
IlUltratome XLý Evaluation" and appears to be an evaluation form
of an IlUltratome XL."
Apparently, Rowland submits the letter and the evaluation
form as proof of the truth of the matter asserted. No one
testified as to what the letter or the evaluation form represent.
Thus, Rowland is relying on the exhibits themselves to support
the truth of the assertion. In that light, the letter and
evaluation form should not be considered, since both are
inadmissible hearsay. For these reasons alone, Rowland has
failed to sufficiently demonstrate by a preponderance of the
evidence that it reduced the invention of the count to practice
on 8 February 1994.
Alternatively, we have considered the letter and evaluation
form in support of Rowland's argument. However, for reasons
discussed below, we are not persuaded that the letter and/or the
evaluation form demonstrate that the subject matter of the count
was actually reduced to practice.
It is not clear from the evaluation form that the device
clarify the replacement of references to "RR 2911 with "Ex. 2033"
(Paper 124). However, that brief will not and has not been
considered, since Rowland has made alterations beyond deleting
references to "RR 2911 to the last two pages, contrary to its
statement that the brief is identical to its original.
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