Appeal 2007-2807
Reexamination 90/006,511
Patent 5,156,811
The patentee further argues that the filter structure disclosed in Ferri
would restrict airflow above the acceptable limits for reliable pipetting. The
argument is misplaced for several reasons. First, the question is:
Acceptable by whom? Second, another question is: Reliable by what
standard? Note that a pipette does not have to operate with great efficiency
or even very well to meet the requirements of the patentee’s claimed
invention. The standard of a commercial product of certain customer-
demanded or otherwise negotiated level of performance is not the test.
The patentee refers to the declarations of Evan Goldstein and Clive
Wingar to support the assertion that placing a Ferri filter in a pipette tip for a
mechanically adjusted pipette does not work. Clive Wingar was Vice
President of Sales and Marketing of Molecular Bioproducts, Inc., the real
party in interest of the patent under reexamination. Paragraphs 4 and 5 of
his declaration are reproduced below:
4. It was determined that filter plugs with a pore size less
than 16 microns would substantially reduce air flow to a rate
that would make the pipette device totally impracticable under
normal conditions using normal pipetting procedures.
5. Accordingly, it is my experience that a pipette tip having
a plug member with an average pore size of less than 16
microns will not allow for gas to flow freely through the plug
member in normal operation of a pipette device. An average
pore size of greater [that] 16 microns will allow for gas to flow
more freely through the plug member in normal operation of a
pipette device.
We do not credit the testimony of Clive Wingar because the basis of
his opinion on pipette devices has not been meaningfully explained. He
does not describe who made the determination referred to in Paragraph 4 or
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