Sands First Test: In Sands' first test, a Burroughs type 1301 pulse delay unit was connected directly to the inspect windings, without any provision to reduce the voltage of the pulse delay unit. The results of this test are shown in the photographs marked Sands Exhibits 18 to 23. Since, from the record, the Burroughs type 1301 unit produces an output pulse of approximately 20 to 30 volts, the effect of connecting it to the inspect windings was to apply a 22 volt inspect pulse to the circuit, rather than the 1.3-volt inspect pulse used in the Allen tests. Improper operation resulted, and, indeed, the variable input core in these Sands' tests completely switched in approximately 10 microseconds. This test obviously failed to duplicate the test conditions of the Allen tests. It was in direct conflict with the evidence produced by Paivinen that an inspect pulse of 1.3 volts was used, and that the circuit will be inoperative if the inspect pulse is sufficient to switch an input core. Sands Second Test: In the second test undertaken by Sands, the output voltage from the Burroughs type 1301 pulse delay unit was reduced from 22 volts to 1.3 volts by connecting a potentiometer from its output terminal to ground. The photographs taken during this test were marked Sands Exhibits 24, 25, 27, and 28. Paivinen argues that the adjustment of the potentiometer to 1.3 volts at its tap had the effect of reducing the resistance between the tap and ground to about 10 or 15 ohms. When this value of resistance is connected across the shunting diodes in the inspect circuit, he argues, their shunting effect is destroyed and a large circulating current occurred during the clearing or resetting of the input cores. Paivinen relies on his original notebook entry, his testimony, and his application in interference to support his contention. In discussing this test, the board stated, and we agree, that: Sands then connected a 100 ohm potentiometer across the terminals of the PDU and adjusted the pulse to 1.3 volts. He then exhibited another series of oscilloscope patterns and photographed them (Sands Exhibit 24 to 30 inclu.). This change in circuitry did not achieve proper operation. It again seems to be a matter of unsuitable impedance characteristics of the source. Sands Third Test: The third test run by Sands used a diode clamp to reduce the output voltage of the Burroughs type 1301 pulse delay unit from about 22 volts to 1.3 volts, thus apparently avoiding the disruptive factors of the first and second tests. As a consequence, the circuit operated properly, and Sands so testified. The results of this third test are shown in Sands' Exhibit 29 to 33. After the third test had been completed and proper operation obtained, Sands increased the duration of the inspect pulse until it just completely switched an input core. The result of this, as previously noted, was to produce a spurious output pulse. The photographs of this test with a lengthened inspect pulse are Sands' Exhibits 34 and 35. This test was similar to the one run by Allen in 1952 to generate photograph 7, when, after successful operation had been achieved and documented in photographs 1 to 6, Allen increased the duration of the inspect pulse to show that this would give rise to a spurious output pulse. In rebuttal testimony, Paivinen stated that he had no exact recollection of modifications external to the circuit of the Pulse Delay Unit. The board summarized Paivinen's position on Sands' tests as follows: The foregoing excerpts contain the essence of the witness Paivinen's position on this aspect. In substance it is that his system worked to obtain the desired end result and that in working it produced the wave forms in Allen's notebook. Since these results could not be obtained by direct connection of the pulse source used to the circuitry under test without modification, and since there was a direct connection, the results must have been obtained by parallel connected elements, which the witness could not remember seeing and could not describe or specify. [2] The board's position concerning this question seems to us in error, and seems to fail completely to give proper weight to the Paivinen proofs. Although it is true that the Paivinen witnesses could not recall seeing a diode clamp connected to the output terminal of the inspect pulse source they used some ten years before, they testified as to the characteristics of the pulse source and the nature of the pulses it produced. This testimony alone, it seems to us, is completely adequate to establish a reduction to practice. Moreover, they testified that the pulse source in fact included a Burroughs type pulse delay unit, together with a modifying circuit element which served to reduce the output voltage of this unit from 20 to 30 volts to 1.3 volts (as shown in the photographs), and to reduce the inspect source impedance during inspect time from 100 or 200 ohms to about 15 ohms, while leaving it unaffected during non-inspect time. Thus, they testified that the modifying element itself as a voltage limiting element having asymmetrical resistance characteristics. Such an element is, in fact, a diode. The board's position concerning this point seems to be that in attempting to prove what happened in 1952, greater weight should be given to later testimony and proofs than to the photographs taken at the time the test occurred. The fact that the Paivinen witnesses cannot recall every element of the apparatus used to test the Paivinen circuit, an act some ten years earlier, does not seem to us to overcome the great weight attributable to the record Paivinen made contemporaneously with the activities relied upon. The testimony of the Paivinen witnesses and supporting documents show beyond any reasonable doubt that the Paivinen circuit tested by Allen in 1952 was operative, and one cannot avoid this conclusion without holding that Paivinen and Allen deliberately gave false testimony and that the exhibits were falsified. Walker v. Bailey, 44 CCPA 998, 245 F.2d 486, 114 USPQ 302 (CCPA 1957); cf. Patterson v. Clements, 30 CCPA 1262, 136 F. 2d 1002, 58 USPQ 539 (CCPA 1943). Nor is there reasonable doubt cast on this position by Sands' tests. Indeed, instead of proving the Allen tests inoperative, the Sands' testimony, especially test 3, confirmed the operativeness and success of those tests. Nor do we think that Sands' analysis of Allen's oscilloscope patterns requires a contrary result. While fraught with technical nuances, that analysis does not, in our view, overcome the testimony of Paivinen and Allen that a successful test was achieved. Since Paivinen had to prove an actual reduction to practice of counts 1-5 beyond a reasonable doubt, a point to which we have given our greatest attention in reversing, and count 6 by a preponderance of evidence, we think that Paivinen, on this record, has satisfied those burdens. We have been greatly assisted in our determination by the careful discussion by the board and the able arguments of both parties. We have not set forth, in this opinion, all of the points of those arguments, but they have received our careful consideration during our lengthy deliberation of this appeal. In view of the foregoing, the decision of the board awarding priority of invention to the senior party Sands is reversed. MEMORANDUM OF DECISIONS DISMISSED OCTOBER 3, 1967 No. 7700. In re Peter J. Bily-Fluid transferring apparatus. No. 8143. In re Karl Schmitt-Process for the production of polypropylene with a low freezing temperature. OCTOBER 5, 1967 No. 7977. In re Alexandre Korganoff-Combustion engine. No. 8049. In re Alan F. Blake-Duplicating stencils. No. 8094. In re Swingline, Inc.-Trademark for paper fasteners. No. 8147. In re Orlando A. Battista-Regenerated cellulose fiber. No. 8162. In re Frithjof N. Hansen-Periodic low-pass filter and method of making same. No. 8241. In re Robert K. Stanley-Strand treatment. OCTOBER 16, 1967 No. 8089. In re Alexander A. Sakhnovsky et al.-Permeable filter and drier block and method of making same. OCTOBER 20, 1967 No. 7907. In re Cleveland J. White-Composition of matter. No. 8134. In re Robert Ernst-Compositions including acyclic surfactant sulfobetaines. OCTOBER 30, 1967 No. 8078. In re Donald S. Shriver et al.-Process for producing melamine-ureaformaldehyde concentrates. No. 8122. In re Karl Hass et al.-Process for the manufacture of sintered products from refactory or highly refactory oxides. NOVEMBER 2, 1967 No. 8217. Roy E. Ferree v. Harry D. Shephard, Jr. et al.—Side boards. NOVEMBER 9, 1967 No. 7866. In re George Shey-Refillable cartridge belt-type staples elements. NOVEMBER 14, 1967 No. 8264. In re Ralph R. Calaceto-Gas treatment apparatus. NOVEMBER 22, 1967 No. 8184. In re Kenneth W. Jarvis-Rear-view mirror device for vehicles. DECEMBER 5, 1967 No. 8074. In re Walter Volkl Electric thin-foil capacitor. 1513 |