Appeal No. 2005-2512
Reexamination Control No. 90/006,431
corresponds to the “showsim.c” software module which is mentioned in the ‘952 patent
at column 14, line 65, and reproduced at pages 30-44 of the software appendix to that
patent, noted as column 14, lines 60-65.
The examiner nevertheless questions Ho’s above-quoted testimony that “to the
extent [the RailMill] documents describe RailMill and the use of ChipViewer to display
the outputs from RailMill, they describe an embodiment of our invention, made by us,”
Second Ho Decl. para. 5,
on several grounds, none of which are persuasive. The first, which is apparently offered
in response to appellant’s contention that Ho and Tuan invented ChipViewer per se, is
that that argument is contradicted by other evidence of record, including the Arcadia
Manual, which the examiner construes as attributing the invention of ChipViewer to
Archer rather than Epic personnel. Ans. 9 (quoting paragraph 175 of the Final Action).
As support for refusing to give weight to the declaration under these circumstances, the
examiner cites Ex parte Kroger, 219 USPQ 370, 371-72 (Bd. Pat. App. 1982),
which is cited in MPEP § 716.10. Ans. 9-11 para. 178. Kroger held that declarations
by applicants Kroger and Rod alleging thar they invented the subject matter relied on in
a reference article co-authored by Kroger and Knaster were unpersuasive because they
were contradicted by other evidence of record, namely, a letter by Knaster asserting co-
inventorship of that subject matter with Kroger and Rod and evidence of Knaster’s
refusal to sign a supporting declaration. Although for the reasons given below we agree
with the examiner that the Arcadia Manual appears to credit ChipViewer per se to
30
Page: Previous 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 Next
Last modified: November 3, 2007