exception of Model 3, do not show any keys forming a keyboard, i.e., requirement [5].
Goddard’s counsel confirmed during oral hearing that, with the exception of Model 3, the
photographs did not show the presence of keys on the models. As to Model 3, Goddard’s
counsel represented that the “thumbtacks” of Model 3 that are visible in photographic exhibit J4
were keys that were capable of making, breaking or changing current in an electrical circuit.
In light of the photographs and oral representation by Goddard’s counsel, Goddard has
failed to establish that keys were present in Models A1, 1, 4, 6 and 7 as constructed and
photographed. We further conclude that the declarations of Goddard and Champion fail to
establish, by a preponderance of the evidence, the presence of keys in Models 2 and 5 as
constructed. Furthermore, with respect to Model 3, Goddard has not pointed to any evidence
that the thumb-tack like metallic objects on the surface of the concavity of Model 3 had
selectable "on" and "off," or "open" and "closed" positions. Because the count requires
selectively actuable keys it is implicit that the keys must have alternating "on" and "off," or
"open" and "closed" positions or their electronic equivalent. The evidence on this record is
insufficient to establish that these thumb-tack like metallic devices were operative keys for
entering information into an electronic system.
B. Gambaro=s Opposition to Goddard=s Brief on Alleged Reduction to Practice
Gambaro opposes Goddard=s alleged reduction to practice. According to Gambaro, a key
feature of the invention of Count 1, is the coupling of the hand-held device to an electronic
system. (Gambaro=s Opposition, pages 4 and 13). Gambaro argues that there is no evidence that
any of the models shown in Exhibits J1 through J8 were ever connected to an electronic system.
As such, it is Gambaro=s position that Goddard failed to actually reduce to practice a device
falling within the scope of Count 1. (Gambaro=s Opposition, pages 4 and 13). Moreover,
Gambaro contends that the fact that the metallic devices inserted in Model 3 were capable of
carrying current does not necessarily demonstrate that current ever flowed between any of the
metallic devices. (Gambaro=s Opposition, p. 15).
C. Goddard=s Reply to Gambaro=s Opposition
Of note, Goddard argues that the invention of Count 1 is an ergonomic keyboard design.
(Goddard=s Reply, p. 1). According to Goddard, Gambaro has ignored Goddard’s evidence that
the design of the Goddard models meets the terms of the count and that the models were for the
purpose of entering information into an electronic system. Goddard further argues that the
design of Model 3 possessed metallic key positions located in a concavity, which was for the
purpose of entering information into an electronic system. (Goddard=s Reply, p. 2).
D. Goddard Lacks Sufficient Proof of a Reduction to Practice Prior to Gambaro=s
Filing Date
As mentioned above, Goddard has the burden, by a preponderance of the evidence, of
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