Snitzer argues that Stubbs lack of recollection of the
precise term "phase mask" is not critical, since it is the
conveyance of the concept that is important. However, as pointed
out by party Anderson, Stubbs not only testified that he did not
recall the specific term "phase mask" being used, he also had no
recollection of the discussions he had with Dr. Snitzer during
the 30 July 1992 meeting. Snitzer does not provide a sufficient
explanation for Stubbs, inconsistent testimony. Thus, we do not
credit Stubbs testimony that on 30 July 1992, he discussed with
the Snitzer inventors a mask having any form of periodic
variation in optical properties, including a mask that affected
phase or amplitude.
For the above reasons, Snitzer has failed to establish
corroboration of its alleged conception of the subject matter of
the count.
Derivation is a question of fact. To prove derivation, the
movant must establish prior conception of the claimed subject
matter and communication of the conception to the adverse
claimant. Price v. Symsek, 988 F.2d 1187, 1190, 26 USPQ2d 1031,
1033 (Fed. Cir. 1993).
It is well established that derivation is difficult to
establish by direct evidence; it can generally only be
established from the circumstances of a case. Barnet v. Wied,
195 F.2d 311, 93 USPQ 161 (CCPA 1952). Accordingly, all the
47
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