During the conference call, counsel for Wojciak was not in a
position to state, one way or the other, whether Wojciak would
seek judicial review (35 U.S.C. § 141-144 and 35 U.S.C. § 146).
Both counsel were advised that if judicial review is to be
sought, then the board would enter a decision on Nishiyama's
request for reconsideration so that all issues could be presented
to a reviewing court.
b.
The panel has determined that the best course of action is
to decide Nishiyama's request for rehearing at this time.
Our decision to exclude data in the Nishiyama specification,
to the extent the data was proffered to prove the truth of
experimental work reported in the Nishiyama specification, was
based in large measure on our assessment of the credibility of
Nishiyama's witness Yuko Nishiyama. After weighing the
credibility of Yuko Nishiyama, we found that we could not make a
finding that Nishiyama had established by a preponderance of the
evidence that Yuko Nishiyama conducted the experimental work said
to be reproduced in the Nishiyama specification.
Nishiyama, in its request for reconsideration, asks us to
conduct a renewed credibility assessment. We decline the
invitation. All of the parts of the record referred to by
Nishiyama in its request for reconsideration were considered by
the panel at the time it entered its decision (Paper 72). Hence,
no point raised in the Nishiyama request for reconsideration has
been overlooked. Nor was any point misapprehended.
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Last modified: November 3, 2007