Appeal 2006-1875
Reexamination Control No. 90/006,272
1 Trade Comm'n, 180 F.3d 1354, 1366 (Fed. Cir. 1999). Thus, "[t]he
2 Supreme Court recognized over one hundred years ago that testimony
3 concerning invalidating activities can be 'unsatisfactory' due to 'the
4 forgetfulness of witnesses, their liability to mistakes, their proneness to
5 recollect things as the party calling them would have them recollect
6 them, aside from the temptation to actual perjury.'" Id. (quoting The
7 Barbed-Wire Patent, 143 U.S. 275, 284, 12 S.Ct. 443, 36 L.Ed. 154
8 (1892)). This "rule of reason" standard requiring corroborating
9 evidence extends to claims by individuals purporting to be co-
10 inventors. See Ethicon, Inc. v. U.S. Surgical Corp., 135 F.3d 1456,
11 1464 (Fed. Cir. 1998). Physical, documentary, or circumstantial
12 evidence, or reliable testimony from individuals other than the alleged
13 inventor or an interested party, may corroborate. See Sandt Tech., Ltd.
14 v. Resco Metal & Plastics Corp., 264 F.3d 1344, 1350-51 (Fed. Cir.
15 2001); Ethicon, 135 F.3d at 1461.
16 Analysis
17 Has the declaration testimony been corroborated?
18 Mr. Miller testified that he received the Copes-Vulcan Brochure before
19 the critical date of June 30, 1997. Because of the length of time since the
20 events in 1997, and because Mr. Miller is an employee of a competitor to the
21 Patent Owner in selling fluid control valves, and therefore is an "interested
22 witness" in the outcome of the reexamination, it is appropriate to examine
23 whether his declaration testimony is corroborated.
24 We conclude that Mr. Miller's testimony that he received the
25 Copes-Vulcan Brochure on or before June 20, 1997, is corroborated by the
26 following two pieces of evidence: (1) the Exhibit 15 memorandum dated
27 June 20, 1997, from Mr. Miller to Mr. Sykes, referring to the Copes-Vulcan
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