actually contemplated using a phase grating mask, or the concept
of a phase grating mask, e.g. a mask having varying thickness
across the surface of the mask (Finding 10). Snitzer's
disclosure to Dr. Stubbs could have been very generic without
mentioning any specifics.
We are also not persuaded by Snitzer's argument that prior
art that demonstrates that phase masks were known in 1984 as
transmission gratings is consistent with Dr. Stubbs'
understanding of the Snitzer's invention. That it might have
been obvious to use known phase masks to vary phase is not the
point. Snitzer has failed to demonstrate that Stubbs'
understanding is the same as what the inventors had in mind.
In any event, we find Stubbs testimony not to be credible.
Dr. Stubbs, in his declaration, testified that during the 30 July
1992 meeting, Dr. Snitzer made it clear to him that a mask having
any form of periodic variation in optical properties was within
the invention, including a mask that affected phase or amplitude.
During cross-examination, however, Stubbs had no recollection of
the discussions he had with Dr. Snitzer during that meeting
(Finding 121). Notes taken during the meeting do not
sufficiently describe the concept of a phase mask as defined in
this interference (Snitzer Ex. 3034). Accordingly, Stubbs
testimony is inconsistent and not reliable.
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