Interference No. 103,675
that the laboratory notebooks and the associated scientific data were:
made at or near the time by, or from information transmitted
by, a person with knowledge, if kept in the course of
regularly conducted business activity, and if it was the
regular practice of that business activity to make the
memorandum, report, record, or data compilation, all as
shown by the testimony of the custodian or other qualified
witness, unless the source of information or the method or
circumstances of preparation indicate lack of
trustworthiness.9
Chen et al. have not produced the "custodian" of Ms. Wei's laboratory
notebooks but instead rely on the testimony of Dr. Chen, an inventor
of Chen et al.'s involved patent, as a "witness with knowledge" under
Federal Rule 803(6) for the purpose of establishing that "Ms. Wei
regularly maintained lab notebooks memorializing the tests she
conducted for him. (Chen, CR-1763, lines 8-10.)" See page 3 of Chen et
9 Federal Rule 803(6) was amended effective December 1, 2000,
after Chen et al.'s opposition was filed, to provide that in
addition to the "testimony of a custodian or other qualified
witness", the record of regularly conducted activity could be
established by certification pursuant to Federal Rule 902(11) or
902(12).
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