Nishiyama asserts in its request for reconsideration that
cross-examination cleared up any ambiguity in the direct
declaration testimony of Yuko Nishiyama. We disagree. We can
agree that there is a possibility that Yuko Nishiyama conducted
the experimental work reported in the specification. But, a
possibility is not sufficient. Rather, a preponderance of the
evidence must establish that Yuko Nishiyama conducted the
experimental work. A preponderance of the evidence is based on
probabilities, not mere possibilities.
Counsel for Wojciak indicated during the conference call
that judicial review, review, would probably take place by civil
action under 35 U.S.C. § 146. Whether further testimony in a
civil action under § 146 would be admissible, and if admissible
more convincing, is a matter which Nishiyama may wish to
consider. However, we are not inclined in this case to change
our mind on an issue which was resolved largely on the basis of a
credibility assessment. While others might have resolved
credibility differently, we are satisfied that our resolution was
well within our role as fact finders. Accordingly, the Nishiyama
request for reconsideration will be denied.
C. Order
1.
Upon consideration of NISHIYAMA REQUEST FOR RECONSIDERATION
OF PAPER NO. 72 (Paper 81), and for the reasons given, it is
ORDERED that the request for reconsideration is denied.
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