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Paid Witnesses Lack Credibility for Summary Judgment of Invalidity

July 06, 2004

Decision icon Decision

Last Month at the Federal Circuit - August 2004

Judges: Dyk (author), Lourie, and Schall

In TypeRight Keyboard Corp. v. Microsoft Corp., No. 03-1197 (Fed. Cir. July 6, 2004), the Federal Circuit reversed a SJ of invalidity on two patents owned by TypeRight Keyboard Corporation (“TypeRight”).

TypeRight owns two patents that concern ergonomic keyboards featuring a particular key arrangement and wrist rest. Microsoft Corporation (“Microsoft”) sought to invalidatethe patents based on publicly accessible keyboards under 35 U.S.C. § 102(b). However, because the keyboard in question could not be dated, Microsoft offered fact testimony of several paid consultants. Two of the consultants testified that a document showing the keyboard came from a 1986 trade show in Germany. The district court found that the document constituted prior art under 35 U.S.C. § 102(b) and ruled on SJ that the patents were invalid for obviousness.

The Federal Circuit ruled that SJ of invalidity was improper and that a trial is necessary to determine the credibility of the testimony offered by Microsoft to prove that the document in question was prior art. The Court agreed that if the document was in fact distributed at the German Trade Show in 1986, such a distribution could constitute publication under 35 U.S.C. § 102(b), but SJ was improper because general issues remain as to the credibility of the witnesses’ testimony. First, the document itself is undated and was discovered in a file dated 1990 rather than 1986. Second, the date of the events in question occurred over eighteen years ago. Third, the testimony was somewhat tentative. Also, two of the fact witnesses received compensation from Microsoft for their time testifying. The Court also noted that the district court would need to address whether the testimony had been properly corroborated, stating that both physical evidence and oral testimony of a disinterested party can serve to satisfy the corroboration requirement.