The Law Doesn't Impose an Impossible Standard of Corroboration; But You Do Need Some

In re Garner, [2007-1221](December 5, 2007)[MOORE, Rader, Schall] The Federal Circuit affirmed BPAI's decision against Garner for failure to make a prima facie showing of priority.
BRIEF: Garner attempted to provoke an interference, and when his initial filing was found insufficient, attempted to add copies of his application and prior provisional application. The BPAI rejected the submission of the application and provisional application as improper new evidence. The Federal Circuit reversed the BPAI's finding of new evidence, but affirmed the dismissal of the opposition, finding that even with the specifications, Garner’s submissions to the Board do not sufficiently corroborate his claim of actual reduction to practice. Garner submitted that a declaration from Fondon, who saw the device in Garner's laboratory as corroboration. But the Federal Circuit observed that Fondon did not testify that the device operated or worked for its intended purpose. In fact, Fondon did not indicate that he ever saw the device operate. The Federal Circuit said that while the law does not impose an impossible standard of ‘independence’ on corroborative evidence by requiring that every point of a reduction to practice be corroborated by evidence having a source totally independent of the inventor, corroboration of the existence of the device is not sufficient in this case to establish corroboration of reduction to practice.