Interference No. 105,313
Tomita v. Godil
art, without any personal knowledge of the device or connection to making the measurements,
would have known of those particular facts.
For the foregoing reasons, party Tomita has not shown good cause to have new evidence,
in the form of James Hunter’s second declaration (Exhibit 2002), considered. The declaration is
not accepted for consideration.
Finally, and in the alternative, even if the second declaration of James Hunter is accepted
for consideration, his position on what the illustrations in Figures 4a, and 4c of Exhibit C in the
Rule 608(b) showing represent is not consistent with Exhibit C’s own description of those
figures. According to James Hunter, the illustrations are of data measurements taken by him on
actual devices which had all the features of the count. However, on page 1 of the same Exhibit
C, in the “Background” section, it is stated: “Shown in Fig. 4a, 4b, 4c are the predicted max. and
th
min. diffraction efficiencies into the 0 order for substrate reflectivities of 30%, 50%, 80%,
respectively, for a wavelength of 532nm.” If the illustrations in the figures reflect mere
“predicted” outcomes as the document containing the figures themselves state, that is contrary to
the representation of James Hunter in his second declaration. It is noted that the highly regular
curves in the figures are consistent with the description in the exhibit that the illustrations are
predictions. In the absence of any explanation of the discrepancy, we do not credit the testimony
of James Hunter over what the exhibit itself says about its own figures. Thus, even if the second
declaration of James Hunter is accepted for consideration, which it is not, party Tomita has not
shown good cause why judgment should not be entered against it.
C. Conclusion
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