Interference No. 105,313
Tomita v. Godil
showing would have been read and understood from the perspective of a person with ordinary
skill in the art. We do not find testimony in the second declaration to be in that nature or to have
that character. Rather, the second declaration of James Hunter is filling in factual gaps about the
details of the measurements referred to in the original Rule 608(b) showing, based on the
personal knowledge of James Hunter who supposedly took those measurements.
For instance, the show cause order discussed how the testimony in the original showing
about the measurements taken by James Hunter indicated only that they aided Mr. Hunter in
understanding the invention and related innovations, and not that the measurements were taken
on a device which had each of the elements recited in the count. Because on summary judgment
a witness’ testimony is ordinarily accepted at face value unless there is reason to do otherwise, if
the declarant did not state that the measurements were taken when operating a device which had
all the features of the count, it would be inappropriate to assume that that was the case.
Rather than explaining why one with ordinary skill in the art would have read and
understood a vague and fuzzy statement that James Hunter conducted “certain measurements that
aided in understanding of the invention and related innovations” as meaning that James Hunter
took measurements on an actual device which had all the features recited in the count, the second
declaration of James Hunter itself provides the specific information that was missing. On page 2
of James Hunter’s second declaration, it is stated: “In particular, I confirmed that grating light
valves including the features recited in the claims of that U.S. patent application were made
by myself and others at the assignee of the application prior to August 11, 1999, Silicon Light
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