Interference No. 103,675
question.
We also note that noteworthy by its absence in Chen et al.'s
brief or in their record, is any evidence that the real party in
interest, Bristol-Myers Squibb, in the relevant time period, required
laboratory researchers such as Ms. Wei, to keep official notebooks or
to record data in such notebooks in any particular fashion. Thus, we
simply do not have adequate information on which to find that Ms.
Wei's laboratory notebooks were "kept in the course of a regularly
conducted business activity, and if it was the regular practice of
that business activity to make the memorandum, report, record, or data
compilation". Federal Rule 803(6).
Alternatively, Chen et al. also invoke what they refer to as
the so-called "catchall" hearsay exception of Federal Rule 807
(Residual Exception), although Chen et al. incorrectly refer to the
rule as part of Federal Rule 803(24), as a reason for admitting the
hearsay Bouchard et al. seek to exclude. Remarkably, Chen et al. offer
as evidence of the "circumstantial guarantees of trustworthiness"
required by the rule the very same documents of Ms. Wei which Bouchard
et al. seek to exclude! Nonetheless, Chen et al. made a conscious,
deliberate decision not to call Ms. Wei to testify and, therefore,
they may not rely on her status as a non-inventor or her alleged
truthfulness in preparing the challenged documents in an attempt to
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