Appeal 2006-1875
Reexamination Control No. 90/006,272
1 Brochure; and (2) the Exhibit 16 reply sent by facsimile from Mr. Sykes back
2 to Mr. Miller, referring to the Copes-Vulcan Brochure product and the Miller
3 memorandum, dated June 26, 1997, and stamped (two places) as also received
4 June 26, 1997. We find that Exhibit 15 contains sufficient textual references
5 to indicate that it refers to the Copes-Vulcan Brochure for the reasons stated
6 by Mr. Miller (Fact 21),2 which are not contested by Patent Owner, and,
7 therefore, find that Exhibit 16 also refers to the brochure. These documents
8 are highly reliable because they were created more than a year before the
9 filing of the application which became the '076 patent. Cf. Sandt Technology,
10 264 F.3d at 1350-51, 60 USPQ2d at 1094 (Anticipation under § 102(g)(2):
11 "Documentary or physical evidence that is made contemporaneously with the
12 inventive process provides the most reliable proof that the inventor's
13 testimony has been corroborated. Because documentary or physical evidence
14 is created at the time of conception or reduction to practice, the risk of
15 litigation-inspired fabrication or exaggeration is eliminated." (Citation
16 omitted.)). Mr. Miller's statement that Mr. Carson and Mr. Nagpal recalled
17 receiving a copy of the memorandum (Fact 22) is not given any weight
2 Exhibit 15 states: "Attached is a copy of the Copes Vulcan sales
brochure on their Drag™ copy." "DRAG" is a term used by Third Party
Requester CCI to refer to their tortuous path trim (see Exhibit 3 in the
Request for Reexamination). Thus, Exhibit 15 indicates Mr. Miller's opinion
that the Copes-Vulcan RAVEN product is a copy of the CCI DRAG product.
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