Appeal 2007-2807
Reexamination 90/006,511
Patent 5,156,811
how the determination was made. In Paragraph 5 of his testimony, the
reliance on general “experience” and the reference to “normal operation” are
vague and indefinite. We do not know what experience he had in actually
working with or testing pipette performance and we do not know his
definition of what constitutes “normal” pipette operation. His testimony also
states only that a pore size of greater than 16 microns will allow gas to flow
“more freely,” and not that such a pore size will prevent gas flow. As we
noted above, a pipette does not have to operate with a superb level of
efficiency or effectiveness to meet the requirements of the patentee’s
claimed invention.
We also do not credit the testimony of Evan Goldstein, who was
Director of Marketing at Molecular BioProducts, Inc. His testimony is no
more germane and definite than that of Clive Wingar. His declaration does
not reveal technical qualification sufficient to give meaningful credence to
his opinions on the effect of restricted airflow on the operation of pipettes.
To the extent that he was merely giving hearsay testimony on why certain
plugs manufactured for Molecular Bioproducts, Inc. by a third party
manufacturer of plugs was rejected for defective performance not meeting
the contracted standard, specifically “slow draw,” we note that the airflow
standard written into patentee’s commercial contracts with plug suppliers
has not been shown to be any part of the patentee’s claims. A pipette with a
slow draw still operates like a pipette. Moreover, the draw rate would seem
to depend on the source of suction. The patentee’s claims do not require any
particular type of suction device. Any “slow draw” referred to by Evan
Goldstein could have been due not to a defective or inoperable plug, but a
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