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Interference No. 105,125
Chaffee v. Skulnick
The testimony of Chaffee and of his corroborating witnesses could simply describe Chaffee's
complete design and even make reference to the drawings in Chaffee's application or Skulnick's
patent. Any evidence that might be in the possession of Skulnick is unnecessary and
superfluous. In any event, there has been no reasonable showing by Chaffee that evidence in
support of Chaffee will be forthcoming if and when testimony of Skulnick is taken. We have
been given no reason to expect that Skulnick will testify that prior to February 27, 2001, he
received a boat fender from Chaffee which embodied the entirety of the claimed design in
Chaffee's involved application or Skulnick's involved patent.
Also at oral argument, counsel for junior party Chaffee indicated that because "of the
simplicity of the invention" (Transcript at 23) he thought the evidence in the original Rule 608(b)
submission was sufficient. The argument is without merit. Even assuming that the claimed
design constitutes a simple invention, that does not mean some part of it need not be accounted
for in Chaffee's Rule 608(b) submission. Moreover, the design may be deemed "simple"
whether the back of the design is flat, "C" shaped, or "X" shaped. Characterizing the invention
as simple does not reveal the ornamental designs, if any, which are on the top, bottom, back, and
lateral sides of the fender whose front elevational view is illustrated in Chaffee's original Rule
608(b) submission and does not excuse Chaffee's failure to account for such features.
For the foregoing reasons, Chaffee has shown no good cause why we should allow it a
further opportunity to present additional evidence under 37 CFR § 1.608(b).
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