Lastly, Herman argues that Barnes could not have been an inventor of the Barnes patent,
since Barnes was unfamiliar with the subject matter in the Barnes patent (Paper 29 at 20). The
argument is based on comments that Barnes made regarding an article written by Baboura.
According to Herman, the Bahoura article covers the same subject matter as that in the Barnes
patent. Barnes apparently reviewed the Baboura article and sent Baboura an e-mail (ff 5 1).
Herman argues that the comments made by Barnes in the e-mail demonstrate that Barnes thought
that the subject matter covered in the Baboura. article was novel. Herman argues that since
Barnes believed the subject matter in the Bahoura article to be novel, that Barnes then did not
know what was in the Barnes patent. There are several reasons why Herman's argument fails.
First, the e-mail does not refer to terminology that is used in the counts. Barnes' remarks
are directed to using a beat frequency and a beat index of refraction. These terms are not used in
the 32 counts. Nor has Herman explained how the terminology of "beat frequency" and a "beat
index of refraction" relate to the subject matter of counts 1-32. Furthermore, Herman has made
no attempt to explain how the article is the same as the subject matter of the 32 counts. Even if
the Bahoura article and the Barnes patent cover the same subject matter, the comments made by
Barnes in the e-mail do not necessarily mean that Barnes was unaware of the content in the
Barnes patent. We do not know what Barnes' comments mean, nor will we speculate. Barnes
does not testify as to the content of the e-mail.
Since Herman has failed to provide a corroborated explanation, Herman second substitute
preliminary motion I is denied on this alternative ground.
Since Herman has failed to.demonstrate by a preponderance of the evidence that it is
entitled to the relief requested, we need not and have not considered Barnes' opposition or
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