Here, it is incumbent upon Herman to demonstrate that for each and every count he conceived of
the subject matter, including each element of the count, to the exclusion of Barnes. Herman has
failed to sufficiently demonstrate that he alone conceived of the invention of count 25.
Count 26
Herman makes a similar argument with respect to count 26 (ff 15). Herman testified that
he conceived of the invention of count 26 sometime during the week of 8-15 January 1999 and
disclosed the invention to Fedorochko (ff 58). Again, Herman fails to direct us to corroborating
evidence that demonstrates that the subject matter of count 26 was conceived by Herman during
the week of 8-15 January 1999, and thus conceived prior to the critical date,
Herman testified that the technique of Pound-Drever-Hall is an established frequency
locking technique. Herman argues that because the claim depends from the novel indeperident
claim, then the dependent claim 26 necessarily is solely attributable to Herman (ff 58). As stated
above in connection with count 25, such an argument is misplaced and rejected.
Count6
Bames claim 6 depends on claim 1 and recites that the first and second electromagnetic
waves are each continuous-wave waves (ff 12). Herman, in his declaration, argues again that the
subject matter of the count was provided by him to Fedorochko during the week of 8-15 January
1999. However, Herman has directed us to no corroborating evidence for the assertion that
Herman conceived of the subject matter of count 6 prior to the critical date.
Herman argues that one of ordinary skill could ascertain that the waves described in the
Herman IDD could both be continuous-wave waves, and that since claim 1 is novel, claim 6,
which depends from claim 1 is also novel and thus solely attributable to Herman (ff 53). The
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