Interference No. 104,403
M3 Systems Inc, 157 F.3d 1340, 1364, 48 USPQ2d 1225, 1242 (Fec.
Cir. 1998).
The essence of the junior party’s argument is that Conley told
Rosenthal in a telephone conversation on October 31, 1993 that Magee
already knew about the above-listed Rosenthal patents (Rosenthal
record pages 41- 42). The only evidence of this communication
between Rosenthal and Conley is the testimony of Rosenthal who is the
junior party. As there is no corroboration of this communication, we do
not accord substantial weight to this evidence.
However, even if we were to accord substantial weight to the
Rosenthal testimony, it would not establish that Conley in fact
communicated the patent numbers to the senior party.
Without demonstrating that the senior party knew of the
Rosenthal patents during the prosecution of the Magee patent
application, the junior party has failed to prove with clear and convincing
evidence that the senior party made a deliberate omission of fact, much
less that any action or inaction of the senior party was done with the
intent to deceive the patent examiner. This motion is denied.
54
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