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Apator Miitors ApS v. Kamstrup A/S

Inventor’s Unwitnessed Emails, Drawings Insufficient to Corroborate Testimony Attempting to Swear Behind

Apator Miitors ApS v. Kamstrup A/S, __ F.3d __, 2018 WL 1801590 (Fed. Cir. Apr. 17, 2018) (MOORE, Linn, Chen) (PTAB) (3 of 5 stars)

Fed Cir affirms IPR determination of anticipation/obviousness. Substantial evidence supported the Board’s determination that Apator failed to sufficiently corroborate conception testimony from the patent’s sole inventor, Mr. Drachmann, that Apator hoped to use to swear behind. The record contained a declaration from Mr. Drachmann, as well as emails he had sent prior to the critical date and drawings that, according to Mr. Drachmann, were created before the critical date. “[A] reasonable mind could conclude that Apator failed to proffer evidence [sufficiently] corroborating Mr. Drachmann’s testimony regarding conception.” Op. at 8. The opinion discusses how Mr. Drachmann’s “unwitnessed emails and drawings, alone, cannot corroborate his testimony of conception.” Id. at 7.

KEYWORDS: INTER PARTES REVIEW; CONCEPTION; CORROBORATION