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The opinion in support of the decision being entered today is not binding precedent of the Board.

Paper 94
Trial Division Merits Panel Mail Stop Interference P.O. Box 1450 Alexandria VA 22313-1450 Tel: 571-272-9797 Fax: 571-273-0042

Filed:
November 29, 2005

UNITED STATES PATENT AND TRADEMARK OFFICE _______________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES _______________ MARC A. JURGOVAN and MARTIN B. DIERL Junior Party, (Patent 5,972,396 and Application No. 09/372,646), v. RONALD L. RAMSEY, ARTHUR MALIN, ROBERT HOGAN, LAWRENCE SHARE, and RICHMOND M. SCOTT Senior Party, (Application 09/481,723). _______________ Patent Interference No. 105,173 _______________ Before TORCZON, DELMENDO, and MEDLEY, Administrative Patent Judges. DELMENDO, Administrative Patent Judge.

DECISION ON MOTIONS FOR JUDGMENT AND MOTIONS TO EXCLUDE EVIDENCE

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Party Jurgovan filed a motion for judgment (JMJ) asserting that Party Ramsey derived the inventions recited in counts 1 and 2 from Jurgovan. (JMJ at 1.) Jurgovan

further asserts that it should be awarded priority because it was the first to conceive and actually reduce the inventions to practice and exercised reasonable diligence from prior to any conception by Ramsey to Jurgovan's reduction to practice. (Id.)

In counter position, Ramsey filed a motion for judgment (RMJ) asserting that Jurgovan derived the inventions recited counts 1 and 2 from Ramsey. (RMJ at 2.) Ramsey also

asserts that it should be awarded priority because it was the first to conceive the inventions and to reduce the inventions to practice and exercised reasonable diligence from prior to any conception by Jurgovan through Ramsey's reduction to practice. (Id.)

We grant Jurgovan's motion for judgment on the basis that, by a preponderance of the evidence, Ramsey derived the inventions from Jurgovan. Accordingly, we dismiss Ramsey's

motion for judgment on the same basis. Additionally, the Board has before it Jurgovan's "MISCELLANEOUS MOTION 1" and "MISCELLANEOUS MOTION 2," both filed on June 23, 2005, and Ramsey's June 23, 2005 motion to exclude certain evidence.

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We deny Ramsey's motion to exclude evidence to the extent that the motion relates to evidence on which we rely in support of our decision. We do not reach Jurgovan's

miscellaneous motions because they are moot.

FINDINGS OF FACT The following findings of fact are supported by a preponderance of the evidence in the record. Additional

factual findings are made in the analysis section of this decision. Background 1. This interference was declared on December 8, 2003 between: (i) Jurgovan's United States Patent 5,972,396 (`396 patent) and Application 09/372,646 (`646 application); and (ii) Ramsey's Application 09/481,723 (`723 application). notice.) 2. Jurgovan's `396 patent issued on October 26, 1999 from Application 09/079,382 filed on May 15, 1998. No benefit of an earlier filing date was accorded to Jurgovan. 3. (37 CFR § 1.611 notice at 3.) (37 CFR § 1.611

Ramsey's `723 application, on the other hand, was filed on January 12, 2000 and was accorded the benefit of an earlier filing date to March 6, 1998 based on Application 09/036,232, now United States 3

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Patent 6,030,122 issued on February 29, 2000. CFR § 1.611 notice at 4.) 4.

(37

The real parties in interest are said to be: RECOT, INC. (now known as FRITO-LAY NORTH AMERICA), the assignee of Jurgovan's `396 patent and `646 application; and ILLINOIS TOOL WORKS, INC., the assignee of Ramsey's `723 application.1 ¶¶10, 12; RMJ at 3, ¶¶10, 12.) (JMJ at 2,

5.

The interference was declared with two counts, Counts 1 and 2. (37 CFR § 1.611 notice at 5-6.)

6.

Count 1, which is identical to claim 1 of Jurgovan's `646 application or claim 42 of Ramsey's `723 application, is reproduced as follows: Count 1. In combination: a) a flexible package having a [sic, an] elastomeric front wall and an elastomeric rear wall; said front wall and said rear wall being sealed together at a top seal; a first zipper part attached to an inside surface of said front wall and having a first engagement member facing said rear wall; a second zipper part attached to an inside surface of said rear wall and having a second engagement member facing said front wall;

The record in this interference contains numerous references to "Minigrip" and "Bosch." Minigrip, a division of ILLINOIS TOOL WORKS, INC. (RMJ at 3, ¶13), is a supplier of zipper materials. Bosch (THE ROBERT BOSCH COMPANY) is a supplier of machinery used for applying the zipper material to flexible film. (Exhibit J2020, Declaration of Marc A. Jurgovan at 3-4, ¶8.) 4

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said first and second engagement members being engaged together; said top seal being manually pinch-grip openable and said first and second engagement members being manually pinch-grip openable under a pinch-grip pulling force applied to said front and rear walls below said engagement members; said front and rear walls having a sufficient strength to resist tearing and deformation under the application of said pinch-grip pulling force during pinch-grip opening; and b) a food product stored inside said package below said first and second engagement members. 7. Count 2, which is identical to claim 1 of Jurgovan's `396 patent or claim 31 of Ramsey's `723 application, reads as follows: Count 2. A method of opening and reclosing a flexible package containing a food product, comprising the steps of: 1) providing in combination: a) a flexible package having a [sic, an] elastomeric front wall and an elastomeric rear wall; said front wall and said rear wall being sealed together at a top seal; a zipper having first and second zipper parts; said first zipper part attached to an inside surface of said front wall and having a first engagement member facing said rear wall; said second zipper part attached to an inside surface of said rear wall and having a second engagement member facing said front wall; said first and second engagement members being engaged together; said top seal and said first and second engagement members being pinch-grip openable under a pinch-grip pulling force applied to said front and rear walls below said engagement members; 5

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said front and rear walls having a sufficient strength to resist tearing and deformation under the application of said pinch-grip pulling force during pinch-grip opening; and b) a food product stored inside said package below said first and second engagement members; 2) pinch-grip opening said package by manually pulling with a force of at least said pinch-grip pulling force opposite sides of said package below said zipper to open both said zipper, by disengaging said first and second engagement members, and said top seal from the product side outward in a single pinch-grip opening step; 3) removing a portion of said food product from said package; 4) re-closing said package by manually re-engaging said first and second engagement members. 8. Count 1: Claims 1-26 of Jurgovan's `646 application and claims 42-47 of Ramsey's `723 application are designated as corresponding to count 1, while claims 1-31 of Jurgovan's `396 patent and claims 31-33, 3539, and 41 of Ramsey's '723 application do not correspond to count 1. 5.) 9. Count 2: Claims 1-31 of Jurgovan's `396 patent and claims 31-33, 35-39, and 41 of Ramsey's `723 application are designated as corresponding to count 2, while claims 1-26 of Jurgovan's `646 application and claims 42-47 of Ramsey's '723 application do not (37 CFR § 1.611 notice at

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correspond to count 2. 6.) 10. 11.

(37 CFR § 1.611 notice at

An oral hearing was held on August 10, 2005. Jurgovan's `396 patent and `646 application explains (column 1, lines 32-39 of Jurgovan's `396 patent; page 1, line 29 to page 2, line 1 of Jurgovan's `646 application): Although a number of packages with reclosable zippers are known, the existing packages have a number of drawbacks. For example, these prior packages typically must be initially opened using two distinct steps. First, a heat seal must be broken by cutting the package with scissors or by removing a tear-away, perforated strip. The re-closable zipper closure is then opened in a distinct second step.

12.

The prior art reclosable packages described in Jurgovan's `396 patent and `646 application were representative of commercial products available in November 1996. ¶9.) (JX2020 at 5, ¶12-15; JX2021 at 5,

13.

Thus, these prior art reclosable packages are opened from the "consumer" side rather than from the food product side. ¶¶9-10.) (JX2020 at 6, ¶¶14-15; JX2021 at 5,

14.

According to Jurgovan, the two-step opening characteristic of the prior art package "substantially reduces the consumer appeal of the

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packages and makes the packages undesirable for a variety of products, such as for snack food chips and the like." (Column 1, lines 39-42 of Jurgovan's

`396 patent; page 2, lines 1-4 of Jurgovan's `646 application.) 15. Marc A. Jurgovan, one of the named inventors in both the Jurgovan `396 patent and `646 application, declares that, in 1996, he was assigned to develop a reclosable flexible package for certain of FritoLay's salty snack food products. 16. (JX2020, ¶3.)

Stephen M. Callahan, Frito-Lay's Senior Project Engineer (JX2021 at 2, ¶1), is not an inventor in either of the Jurgovan `396 patent or the `646 application.

17.

Mr. Callahan managed Frito-Lay's reclosable flexible package development project. (Declaration of

Stephen M. Callahan, JX2021 at 1-4, ¶¶1-7.) 18. Mr. Callahan states that Mr. Jurgovan reported to him on the reclosable flexible package development project from October 1996 through approximately March 1997. 19. (JX2021 at 4, ¶7.)

Regarding Frito-Lay's reclosable flexible package development project, Mr. Jurgovan explains (JX2020 at 3):

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6. Frito-Lay wanted to market a flexible, reclosable package for certain of its salty snack food products in which consumers could open and then reclose to better preserve the freshness of any food product remaining in the package. A reclosure project was initiated at Frito-Lay in 1996 to develop a reclosable package solution for its salty snack food products. 20. To avoid significant costs, Frito-Lay desired to develop a reclosable flexible package using standard Frito-Lay materials and manufacturing processes. (JX2020 at 3, ¶7; JX2021 at 3-4, ¶6.) 21. In connection with Frito-Lay's reclosable package design project, Frito-Lay was engaged in potential customer-vendor business relationships with Minigrip and Bosch. 22. (JX2020 at 3-4, ¶8; JX2021 at 3, ¶4.)

In the November and December 1996 timeframe, Minigrip/Bosch offered a solution involving a zipper system similar to those used in prior art reclosable packages. 10.) (JX2020 at 3-4, ¶¶8-15; JX2021 at 5, ¶¶9-

23.

Regarding the Minigrip/Bosch proposal, Mr. Callahan states (JX2021 at 5-6): 9. In November and December 1996, we began evaluating a reclosable bag solution using a Minigrip zipper system applied to the standard Frito-Lay snack-food chip film. It was my understanding that this Minigrip zipper system was similar to zipper systems that Minigrip had supplied to other customers and used commercially. In particular, the Minigrip zipper system was constructed having 9

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a tear strip at the top of the package, a primary seal below the tear strip, and a zipper located below the primary seal. In use, the tear strip would be torn away transversely across the top of the package. The primary seal would then be opened by peeling apart the upper portions of the film material thereby exposing the zipper material. The zipper members would then be separated manually thereby allowing access to the snack-food chip product contained in the bag. The package would then be reclosed by manually re-engaging the zipper material. 10. This prototype reclosable package was similar to all other commercially available reclosable packages that I became aware of in connection with my technical evaluation in that it was opened from the top of the package and above the zipper (from the "consumer side") to gain access to the contents of the package. 11. I understood from my involvement in the project and from conversations with Marc Jurgovan that we were having significant problems with the Minigrip design. In particular, the film would tear uncontrollably and randomly when the tear strips were torn across the top of the package. Also, when the primary seal (located above the zipper material) was opened, the inner laminar bonds of the FritoLay film would often fail causing further uncontrolled tearing down and into the package. 24. Callahan and inventor Jurgovan believed that the Minigrip/Bosch design was unsatisfactory because "the film would tear uncontrollably and randomly when the tear strips were torn across the top of the package." 25. (JX2021 at 5, ¶11; JX2020 at 6, ¶16.)

Additionally with respect to the proposed Minigrip/Bosch design, Callahan and inventor

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Jurgovan state that the inner laminar bonds of the Frito-Lay film would often fail when the primary seal (located above the zipper material) was opened, further causing uncontrolled tearing down and into the package. 26. (JX2020 at 6, ¶16; JX2021 at 5, ¶11.)

Because the prior art and the proposed Minigrip/Bosch suffered from these shortcomings, Jurgovan sought a new reclosable package that was pinch-grip openable requiring only a single motion typical of that commonly used to open existing Frito-Lay snack food packages. (JX2020 at 7-8,

¶¶19-22; JX2021 at 5-6; ¶¶11-14.) 27. The invention recited in Jurgovan's involved claims is said to differ from the proposed Minigrip/Bosch design in that the package "could be pinch grip opened from the interior (or from the `product side') of the bag like consumers customarily open [Frito-Lay's] snack-food chip bags." (JX2021, ¶14;

column 3, lines 5-10 of Jurgovan's `396 patent; page 5, lines 7-11 of Jurgovan's `646 application.) 28. Jurgovan asserts that it conceived the invention by no later than January 2, 1997. 29. (JMJ at 3-6.)

Jurgovan asserts that it communicated the conception to party Ramsey on January 2, 29, and 30, 1997 and March 10, 1997. (JMJ at 6-9.) 11

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30.

Jurgovan further asserts that it actually reduced the invention to practice in September 1997. at 7.) (JMJ

31.

Ramsey, on the other hand, contends that it conceived the invention no later than March 29, 1997. (RMJ at 13.)

32.

Ramsey further contends that it communicated the conception to Jurgovan no later than May 13, 1997. (RMJ at 23.)

33.

Ramsey's preliminary statement also asserts a conception date of March 29, 1997. statement, paper 22, at 2-5.) (Preliminary

34.

Ramsey asserts that it actually reduced the invention to practice on November 6, 1997. 17.) (RMJ at

35.

Regarding conception of the invention, Mr. Jurgovan avers (JX2020 at 8): 22. In the latter part of December 1996, I conceived of a reclosable bag that could solve the problems we experienced with the Bosch/Minigrip prototype. In particular, I thought that we should not be attempting to incorporate a reclose structure which requires the transverse and downward forces on the standard Frito-Lay snack film that it was not designed to experience. Instead, I thought that we should use a reclose solution that took advantage of the standard way that consumers opened Frito-Lay's snack food product, i.e. in a pinch-grip motion.

36.

Mr. Jurgovan further explains (id. at 8-9, ¶23): 12

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The top seal and the zipper material would be opened by manually gripping the front and back walls of the bag and pulling apart with a force that would open the zipper material and then the top seal of the bag from the product side outward in a single pinch-grip opening motion. Because we wanted the package to be reclosable, the flexible film needed to withstand the pinch grip opening process without tearing or deforming. I knew this was a quality of the Frito-Lay standard film which is opened using the pinch-grip motion without tearing or deformation. 37. Mr. Jurgovan states that unlike the Bosch/Minigrip system, the invention would solve the problem of uncontrollable tearing created by opening the tear strip as well as the delamination problem created by delaminating the film down into the bag as the primary seal is opened. 38. (Id. at 9, ¶24.)

Mr. Jurgovan states that he disclosed the invention to Robert E. Hogan, an employee of Minigrip and one of the named inventors of the Ramsey `723 application, and Steven C. Mulder, former Director of Engineering and Technical Services and Director of Operations and Technical Services of Bosch who worked closely with Minigrip, by telephone on January 2, 1997. (JX2020 at 9-10, ¶26.)

39.

Specifically, Mr. Jurgovan declares (id.): On January 2, 1997, I had a telephone conversation with Bob Hogan at Minigrip and Steve Mulder at Bosch. I explained to them the problems we were having with the existing prototypes [proposed by Minigrip/Bosch]. I 13

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also disclosed to them my invention of the pinch-grip reclosable package which I believed would solve these problems. In particular, I disclosed to them my idea of attaching the zipper material to the front and back walls of the Frito-Lay's standard flexible bag material so that the zipper could be engaged just below the top seal of the bag and above the food product. I disclosed to them that the top seal and the zipper material could be opened by the consumer by manually gripping the front and back walls of the bag and pulling apart with a force that would open the zipper material and then the top seal of the bag from the product side outward in a single pinch-grip opening motion. After consuming the snack food, the consumer could then reclose the package using the zipper material. I explained to them that this concept would eliminate the need for tear strips, peel seals and the like. 40. Mr. Hogan states (Declaration of Robert E. Hogan, RX1012 at 6, ¶18): 18. I note that Marc Jurgovan claims that on January 2, 1997 he communicated with me about pinch grip opening. He states that he told me that a pinch grip bag would require a reduced internal opening force perhaps approaching the bond strength of the film. I do not recall whether I had such a conversation with Mr. Jurgovan on January 2, 1997. In any event, whenever Marc Jurgovan first told me that Frito-Lay was requesting zipper technology that would permit pinch grip opening, I told him that such a method would require a zipper opening force lower than the bond strength of the layers of the film. [Emphasis added.] 41. Mr. Mulder declares (Declaration of Steven C. Mulder, RX1016, ¶10): I understood that Mr. Jurgovan now contends that he conceived of a pinch grip reclosable 14

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bag and specified that the internal opening force had to be lower and approach the "bond strength of the film." While I suspect that he had previously gotten information about internal opening force from Minigrip, it would self-evident [sic] to one skilled in the art that the internal opening force of the zipper on a pinch grip openable bag would have to be less than the force needed to either separate the zipper from the film or deform the film itself. [Underscoring added.] 42. Thus, neither Hogan nor Mulder denies inventor Jurgovan's testimony that a January 2, 1997 telephone discussion regarding a pinch-grip openable, reclosable food package took place on January 2, 1997. 43. Mr. Callahan states that by January 24, 1997 at the latest, Mr. Jurgovan informed him about the invention recited in the involved claims. at 6-7, ¶¶14-15.) 44. Specifically, Mr. Callahan recalls (JX2021 at 6-7, ¶¶14-15): 14. At least by January 24, 1997, Marc Jurgovan came to me and said that he thought he had an idea for a reclosable bag solution that is different from the Minigrip system, and that he thought it might be patentable. Mr. Jurgovan took me step-by-step through the elements of his invention. His concept was to have a reclosable bag that could be pinch grip opened from the interior (or from the "product side") of the bag like consumers customarily open snack-food chip bags. He explained that his invention involved attaching zipper material to the front and back walls of the Frito-Lay standard snack15 (JX2021

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food chip bag material so that the zipper could be engaged just below the top seal of the bag and above the food product. The Frito-Lay standard film used for its snackfood chip products is a flexible, elastomeric material. Mr. Jurgovan explained that consumers would open the top seal and the zipper material by manually gripping the front and back walls of the bag below the zipper material and pulling apart with a pinch grip pulling force that would open the zipper material and then the top seal of the bag, from the product side outward, in a single pinch-grip opening motion, without tearing or deforming the bag walls. The consumers could then remove a portion of the product and reclose the package by manually reclosing the zipper material. [Emphasis added.] 15. Mr. Jurgovan also explained to me at this time that because zippers used in standard reclosable packages had internal ("product side") opening forces that were significantly larger than external ("consumer side") opening forces, he wanted to use a zipper having a reduced internal opening force. Otherwise, the large internal zipper opening force could cause the zipper to strip from the bag walls. He explained that to further avoid stripping the zipper material away from the package side walls, the zipper opening forces must approach the bond strength of the sealed film when opened. [Emphasis added.] 45. Mr. Callahan is a packaging/project engineer with almost 30 years of professional experience with extensive expertise in many different facets of package and machine development, testing, and implementation. 46. (JX2021 at 2, ¶1.)

Mr. Callahan is of the opinion "that Mr. Jurgovan's conception of his pinch grip invention, as

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described...and as reflected on pages 1 and 2 of his laboratory notebook (JX 2033), contains sufficient detail that a person working in bag reclosure technology could make and use a functional pinch grip openable reclosable bag without undue experimentation." 47. (Id. at 11, ¶24.)

Mr. Callahan corroborates inventor Jurgovan's testimony as follows (JX2021 at 9, ¶¶19-20): 19. On January 24, 1997, Mr. Jurgovan asked me to review the laboratory notebook that he kept in connection with his work on the bag reclsoure [sic] project at FritoLay...My signature appears at the bottom of pages 1 and 2 of the laboratory notebook, which I signed on January 24, 1997. At the time I signed this laboratory notebook, I would have wanted to understand what was being described on these pages, both as an engineer and as Mr. Jurgovan's supervisor on this project, and I would have insisted on understanding what was described. By no later than January 24, 1997, Mr. Jurgovan provided me with a thorough explanation of the contents of these pages, and I understood them. 20. On page 1 of the laboratory notebook, Mr. Jurgovan describes his pinch grip invention and states that this was discussed with Bob Hogan of Minigrip and Steve Mulder of Bosch on January 2, 1997. The description states that Mr. Jurgovan asked Minigrip to develop a prototype that allows consumers to open bags like they open current flex bags using a pinch grip motion, and that this would eliminate the need for tear strips, peelable seals, etc. I understood this to be communicating the concept of a package formed with flexible, elastomeric walls sealed at the top and bottom, and zipper members attached to the side walls of the elastomeric material below 17

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the top seal of the package. I also understood this to be indicating that the consumer would open the package by manually grabbing the side walls of the flexible package material and pulling with a pinch grip pulling force to disengage the zipper material and then open the top seal in a single pinch grip opening motion, without tearing or deforming the bag walls. This further indicates that after a consumer would remove a portion of the food product contained in the package, the package could be reclosed by manually re-engaging the zipper material. I believe that this is how a person working in the bag reclosure technology would understand this disclosure. [Emphasis added.] 48. Ramsey does not rely on any cross-examination testimony of Mr. Callahan to challenge the accuracy or credibility of the averments made in the Callahan declaration. (Ramsey Opposition to JMJ filed on May

13, 2005, Appendix A.) 49. Frito-Lay, Inc. Technology Notebook No. 3558 (JX 2033 at 2) contains the following drawings and notes, which were "witnessed and understood" by Mr. Callahan on January 24, 1997:

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50.

Frito-Lay, Inc. Technology Notebook No. 3558 (JX 2033 at 17) contains certain drawings and notes, which were "witnessed and understood" by Mr. Callahan on February 24, 1997 and reproduced on the following page.

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51.

Mr. Callahan declares (JX2021 at 15, ¶31): Option 5 on page 17 [of JX2033], however, was Mr. Jurgovan's pinch grip design which I understood was considered by him to be the preferred concept. I understood Mr. Jurgovan's Option 5 to disclose a male zipper member attached to the interior surface of one side of a flexible bag wall material and a female zipper member attached to the interior surface of the an [sic] opposite side wall of the flexible package material. The drawing further shows that the male and female zipper members are engaged together below the top seal of the package and above where the food product would be located. I understood from this drawing that the zipper and top seal would be opened by pulling on the bag side walls below the zipper material with a pinch grip pulling force that would disengage the zipper members and open the top seal in a single pinch grip pulling motion. I also understood from this drawing that the package would be reclosed after the product is removed from the bag by manually reengaging the zipper members. Mr. Jurgovan's description of his pinch grip invention was sufficiently detailed that a person working in bag reclosure technology could make and use a functional pinch grip openable reclosable bag without the exercise of special skill or undue experimentation.

52.

Don Keel, a Senior Project Designer at Frito-Lay, is not an inventor in either of the Jurgovan `396 patent or `646 application. Keel, JX2023 at 1, ¶1.) (Declaration of Don

53.

Mr. Keel declares that Mr. Jurgovan made a presentation to members of the Frito-Lay Technology group on February 20, 1997. Keel, JX2023 at 3, ¶7.) (Declaration of Don

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54.

Specifically with respect to Mr. Jurgovan's February 20, 1997 presentation, Mr. Keel states (JX2023 at 4, ¶8): 8. I understood from Mr. Jurgovan's presentation that he had conceived a snack food package with front and rear elastomeric walls sealed at the top and bottom and zipper elements attached to the walls and engaged with each other, whereby the zipper elements could be disengaged and the upper seal could be opened by the consumer applying a pinchgrip force to the front and rear walls below the zipper. This is reflected in the drawing of Option 5 at page 17 of the lab book (JX 2033). [Emphasis added.]

55.

Inventor Jurgovan states (JX2020 at 11, ¶29): Because my concept involved opening from the product side, the zipper opening force had to be reduced. If not, the consumer experience in pinch-grip opening the bag would be different and there would be a risk that the zipper material would strip off the bag walls.

56.

Non-inventor Callahan declares (JX2021 at 9-10, ¶21): [I]t was known that zipper material intended to be opened from the consumer side of the package, such as Minigrip's, had a much higher zipper opening force from the interior (or product side) in comparison to zipper opening force from the exterior (or consumer side). This is reflected on page 2 of the laboratory notebook [JX2033 at 2] where Mr. Jurgovan writes that the consumer side opening force of the Minigrip zipper was 1.5 to 2.0 lbs. and the product side opening force was 5-6 lbs. I therefore understood Mr. Jurgovan's disclosure to mean that the internal zipper opening force should be reduced. As Mr. Jurgovan explained to me, this would facilitate opening the zipper from 23

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the product side by the consumer and reduce the possibility that the zipper material would be stripped off of the bag walls. [Emphasis added.] 57. Adjusting or optimizing the zipper force by varying the configuration of the male and female members of the zipper was well known to a person having ordinary skill in the art prior to November/December 1996. (Column 7, lines 33-45 of Jurgovan's `396

patent; page 13, line 24 to page 14, line 4.) 58. By January 24, 1997, which is well before Ramsey's asserted conception date, Mr. Jurgovan conveyed to non-inventor Callahan that the package Jurgovan invented would be pinch-grip openable without tearing or deforming the film walls. 9, ¶¶22-23; JX2021 at 6-7, ¶14-15.) 59. Frito-Lay, Inc. Technology Notebook No. 3558 (JX 2033 at 1) contains the following hand-written entries by Mr. Jurgovan, which was "witnessed and understood" by Mr. Callahan on January 24, 1997: · DISCUSSED WITH BOB HOGAN (MINIGRIP) ON 1/2/97 AND STEVE MULDER (BOSCH) ISSUES WITH EXISITING BAG RECLOSURE PROTOTYPES. · TEAR FEATURE DOES NOT WORK RELIABILITY [sic] & CONSISTENTLY. · ASKED MINIGRIP TO DEVELOP A PROTOTYPE THAT ALLOWS CONSUMERS TO OPEN BAGS [ILLEGIBLE] LIKE THEY OPEN CURRENT FLEX BAGS (USING PINCH-GRIP MOTION) · CONCEPT ELIMINATES NEED FOR TEAR STRIPS, PEELABLE SEALS, ETC. (JX2020 at 8-

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· CONCEPT REQUIRES REDESIGN OF MINIGRIP/BOSCH PROPOSED ZIPPER TO REDUCE ZIPPER OPENING FORCE (IF OPENED FROM UNDERSIDE OF ZIPPER. · ZIPPER OPENING FORCE MUST APPROACH (BE LOWER THAN?) BOND STRENGTH OF SEALED FILM WHEN OPENED · ELIMINATES CONCERNS OF PACKAGE DAMAGE AT OR AROUND END SEAL/FIN SEAL JUNCTURE 60. Frito-Lay Technology Computation Notebook (in the name of Marc Jurgovan) contains certain hand-written entries, including an entry with Mr. Hogan's name circled, reproduced as follows:

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61.

Mr. Callahan declares that he attended a meeting on January 29 and 30, 1997 in which members of his reclosable bag project team (including inventor Jurgovan), Hogan and Arthur Malin of Minigrip, and Mulder of Bosch were also present. ¶26.) (JX2021 at 12,

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62.

Mr. Callahan recalls that at the January 29 and 30, 1997 meeting, inventor Jurgovan disclosed the invention to Hogan and Malin in sufficient detail "that a person working in bag reclosure technology could make and use a functional pinch grip openable reclosable bag without the exercise of special skill or undue experimentation." (JX 2021 at 12-13, ¶27.)

63.

Mr. Callahan's recollection is as follows (id.): Mr. Jurgovan explained his idea of applying a reduced opening force zipper to the standard Frito-Lay film (which was known to be a flexible, elastomeric film) below the top seal of the package and above where the food product would be located. He explained that the package could be pinch grip opened by manually pulling the side walls of the bag with a pinch grip pulling force that would disengage the zipper members and then the top seal in a single pinch grip motion, without tearing or deforming the bag walls. He further explained that the consumer could then reclose the package by manually reengaging the zipper material after food product was removed from the package. Mr. Jurgovan also discussed that his pinch grip design would require a reduced opening force zipper when opening from the consumer side of the package.

64.

On March 10, 1997, Mr. Jurgovan addressed a memorandum captioned "BAG OPENING DEVELOPMENT UPDATE" (reproduced on the following page) to various individuals including Messrs. Callahan and Keel. (JX2038.)

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65.

Copies of Mr. Jurgovan's March 10, 1997 memorandum appear to have been provided to Hogan and Malin, both of Minigrip, as well as Steven C. Mulder of Bosch. (JX2038.)

66.

Mr. Jurgovan states (JX2020 at 25-26, ¶65): 65. By at least September 25, 1997, we received from Minigrip zipper material that had 2 lb. (consumer side) and 2 lb. (product side) opening forces, as well as a reversed male and female zipper member. Jerry Reaves and I made prototype pinch grip openable bags using this zipper material and standard Frito-Lay snack food film by at least September 25, 1997. These prototypes had the male and female side zipper portions attached to the front and back walls of the standard Frito-Lay film (which is a flexible, elastomeric material) and were engaged below the top seal of the bag. These were not "hand made" prototypes, but were made using production grade VFFS bag making equipment.[2] Jerry Reaves is a technician at Frito Lay with expertise in maintaining and running bag making equipment.

67.

Mr. Jurgovan further avers that these prototypes were tested and that the tests, as recorded in Frito-Lay Technology Computation Notebook (JX2051 at 50), reflected a success rate of 30 out of 41 bags, i.e., 30 bags were successfully pinch-grip openable and reclosable without deformation and tearing. (Id. at 26-27, ¶¶66-67.)

[2]

seal."

"VFFS" is an acronym for "vertical form, fill and (JX2020 at 4, ¶10.) 29

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68.

Frito-Lay technician Mr. Jerry Reaves, who is not an inventor in either of Jurgovan's `396 patent or `646 application, corroborates Mr. Jurgovan's averment that the invention was actually reduced to practice on September 25, 1997. (JX2022 at 7-9, ¶¶20-24.)

69.

A Frito-Lay internal memorandum dated September 25, 1997 from the inventors of the subject Jurgovan `396 patent and `646 application to Donna Diermeier (JX2052) reads in part as follows: Testing of a lower interior opening force zipper has reduced stripping the zipper off of the film (due to film delamination) from 100% to approximately 30%.

70.

In its opposition to Jurgovan's preliminary motion 1, Ramsey represented to the Board as follows (Ramsey Opposition No. 1 filed on June 11, 2004 at 16-17): Jurgovan refers to the "front and rear walls having sufficient strength to resist tearing and deformation under the application of a pinch-grip pulling force during the pinch grip opening" as being an "important aspect of the invention". Ramsey's reply is that this sufficient strength to perform the function and purpose of the pinch grip opening is not properly characterized as an "important aspect" but rather is an inherent characteristic of the walls of the reclosable bag... The pinch-grip pulling force could not open the engagement members if the bags were not sufficiently strong to transmit the force to the engagement members. It is respectfully submitted that this language clearly shows that the walls of the bag are inherently 30

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strong enough to not tear or deform during pinch-grip opening thus rendering the language "...sufficient strength to resist tearing and deformation..." inherent, superfluous and redundant. [Emphasis added.] 71. Party Ramsey states (Ramsey Opposition at 15): Food packaging designed to be opened with the "pinch grip" technique (RX 1014, ¶13), application of reclosable zipper technology to pinch grip openable packaging (RX 1011, ¶¶14, 17; RX 1012, ¶¶13-16; RX 1016, ¶¶7-8), and varying of the internal and external holding forces of the zipper profiles (RX 1012 ¶23) were all known in the art before December, 1996. 72. Hogan states (RX1012 at 5-6, ¶¶14-16): 14. In November 1996, the Packaging Machinery Manufacturers Institute ("PMMI") held its tradeshow ("PacExpo") in Chicago. Bosch Packaging, which makes FFS equipment but uses Minigrip's TD technology, and Minigrip both attended the show.[3] As part of Bosch's booth at the show, it had a VFFS machine that produced TD zipper bags utilizing a three-flange Minigrip zipper. That is, either the male or female profile had flanges on both sides of the zipper track, and the other had a flange only on one side of the track. 15. The demonstration TD zipper bags had a top seal and were intended to be opened by cutting the top seal with a scissors [sic] and then separating the zipper profiles from the top (consumer side) of the bag. However, when scissors (or a knife) were not available "FFS" and "TD" are acronyms for "form, fill and seal" and "transverse direction," respectively. (RX1012 at 2 and 3, ¶¶5, 11.) According to Hogan, "an FFS method involves a process in which a machine (or series of machines) form a plastic container from the bag film, fill the container with the product, and then create the final seals on the container," while "TD" technology refers to the application of zipper on the film at a 90° angle relative to the direction of film travel on the FFS machine. (Id.) 31
[3]

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to cut the top seal, Steven Mulder (a Bosch representative at the show) and I both opened demonstration bags by applying an outward force on the bag walls below the zipper so as to cause the zipper to open from the product side and then "pop" the top seal to open the bag. Thus, we used a pinch grip method to open the sample bags in order to enable us to show individuals the zipper structure of the bags. A photocopy of one such bag is shown at Ramsey Exhibit 1063. 16. Frito-Lay representatives attended the PacExpo trade show and visited the Bosch booth at the show in November 1996. I am virtually certain that at least some of the Frito-Lay representatives saw the demonstration bags being opened with a pinchgrip method, as discussed above. 73. Mulder, like Hogan, asserts that certain bags were opened using a pinch-grip opening motion at the PacExpo trade show in November 1996. 10.) 74. Party Ramsey did not file a preliminary motion for judgment against Jurgovan based on the unpatentability of Jurgovan's involved claims over the PacExpo prior art. (RX1016, ¶¶7-

DISCUSSION Each party charges the other with derivation, arguing that it conceived the invention first and communicated it to the other party. (JMJ at 2-9; RMJ at 20-24.) For reasons

discussed more fully below, Jurgovan has demonstrated by a preponderance of the evidence that Ramsey derived the

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invention from Jurgovan.

Because Jurgovan has proven that

Ramsey is not the true inventive entity of the subject matter recited in its involved claims, Ramsey cannot prevail in this interference. A party asserting derivation in an interference proceeding must establish: (1) prior conception of the claimed subject matter; and (2) communication of the conception to the party charged with derivation. Price v.

Symsek, 988 F.2d 1187, 1190, 26 USPQ2d 1031, 1033 (Fed. Cir. 1993). "Conception is complete only when the idea is so clearly defined in the inventor's mind that only ordinary skill would be necessary to reduce the invention to practice, without extensive research or experimentation." Burroughs Wellcome Co. v. Barr Laboratories, Inc., 40 F.3d 1223, 1228, 32 USPQ2d 1915, 1919 (Fed. Cir. 1994). reviewing court explained: [T]he test for conception is whether the inventor had an idea that was definite and permanent enough that one skilled in the art could understand the invention; the inventor must prove his conception by corroborating evidence, preferably by showing a contemporaneous disclosure. An idea is definite and permanent when the inventor has a specific, settled idea, a particular solution to the problem at hand, not just a general goal or research plan he hopes to pursue. See Fiers v. Revel, 984 F.2d 1164, 1169, 25 USPQ2d 1601, 1605 (Fed. Cir. 1993); Amgen, Inc. v. Chugai Pharmaceutical Co., 927 F.2d 1200, 1206, 18 USPQ2d 1016, 1021 (Fed. Cir. 1991)(no conception of chemical compound based solely on 33 Our

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its biological activity). The conception analysis necessarily turns on the inventor's ability to describe his invention with particularity. Until he can do so, he cannot prove possession of the complete mental picture of the invention. These rules ensure that patent rights attach only when an idea is so far developed that the inventor can point to a definite, particular invention. Burroughs Wellcome, 40 F.3d at 1228, 32 USPQ2d at 1919. The standard for communication requires a showing that the communication "`enabled an ordinary mechanic, without the exercise of any ingenuity and special skill on his part, to construct and put the improvement in successful operation'" (emphasis original). Gambro Lundia AB v. Baxter

Healthcare Corp, 110 F.3d 1573, 1577, 42 USPQ2d 1378, 1382 (Fed. Cir. 1997)(quoting Agawam Co. v. Jordan, 74 U.S. 583, 602-03 (1868)); accord Hedgewick v. Akers, 497 F.2d 905, 908, 182 USPQ 167, 169 (CCPA 1978)("Communication of a complete conception must be sufficient to enable one of ordinary skill in the art to construct and successfully operate the invention.").

1. Prior Conception Ramsey filed its preliminary statement on April 9, 2004 (paper 22 at 3), alleging a conception date of March 29, 1997.4 (FF 33.) At the time the preliminary statement was

Consistent with its preliminary statement, Ramsey urges the same conception date of March 29, 1997 in its 34

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filed, the interference rules "strictly held [a party] to any date alleged in the preliminary statement." 1.629(a)(2004). 37 CFR §

Thus, for purposes of proving the prior

conception element of derivation on the part of Ramsey, Jurgovan need only establish a date of conception before March 29, 1997. In 1996, Frito-Lay undertook a project to develop reclosable packages for its salty snack food products. 15.) (FF

While Jurgovan admits that reclosable packages were

already known in the prior art, these prior art packages suffered from various drawbacks. One problem of the prior

art is described as follows (FF 11; column 1, lines 32-39 of Jurgovan's `396 patent; page 1, line 29 to page 2, line 1 of Jurgovan's `646 application): Although a number of packages with re-closable zippers are known, the existing packages have a number of drawbacks. For example, these prior packages typically must be initially opened using two distinct steps. First, a heat seal must be broken by cutting the package with scissors or by removing a tear-away, perforated strip. The reclosable zipper closure is then opened in a distinct second step.[5] Thus, these prior art reclosable packages are opened from the "consumer" side using a two-step process. motion for judgment. 31; RMJ at 13.)
[5]

(FF 13;

(Finding of Fact, hereinafter "FF,"

The prior art reclosable packages described in Jurgovan's `396 patent and `646 application were

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JX2020 at 6, ¶¶14-15; JX2021 at 5, ¶¶9-10.)

According to

Jurgovan, the two-step opening characteristic of the prior art package "substantially reduces the consumer appeal of the packages and makes the packages undesirable for a variety of products, such as for snack food chips and the like." (FF 14; column 1, lines 39-42 of Jurgovan's `396

patent; page 2, lines 1-4 of Jurgovan's `646 application.) Marc A. Jurgovan, one of the named inventors in both the Jurgovan `396 patent and `646 application, was assigned to Frito-Lay's reclosable package project from which a reclosable package for use with salty snack food products was to be developed. (FF 15; JX2020, ¶3.) During the

significant time periods of this project, Mr. Jurgovan reported to Frito-Lay Senior Project Engineer Stephen M. Callahan, who is not an inventor in either of the Jurgovan `396 patent or the `646 application. 4, ¶7.) To avoid significant costs, Frito-Lay desired to develop a reclosable flexible package using standard FritoLay materials and existing manufacturing technology. 20; JX2020 at 3, ¶7; JX2021 at 3-4, ¶6.) (FF (FF 16-18; JX2021 at

As part of this

effort, Frito-Lay selected Minigrip and Bosch as potential suppliers of zipper materials and equipment. (FF 21; JX2020

representative of commercial products available in November 1996. (FF 12; JX2020 at 5, ¶12-15; JX2021 at 5, ¶9.) 36

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at 3-4, ¶8; JX2021 at 3, ¶4.)

Thus, Frito-Lay was engaged

in potential customer-vendor business relationships with Minigrip and Bosch. In the November and December 1996 timeframe, Minigrip/Bosch offered a solution involving a zipper system similar to those used in prior art reclosable packages. 22; JX2020 at 3-4, ¶¶8-15; JX2021 at 5, ¶¶9-10.) (FF

Regarding

the Minigrip/Bosch proposal, Mr. Callahan recalls (FF 23; JX2021 at 5-6): 9. In November and December 1996, we began evaluating a reclosable bag solution using a Minigrip zipper system applied to the standard Frito-Lay snack-food chip film. It was my understanding that this Minigrip zipper system was similar to zipper systems that Minigrip had supplied to other customers and used commercially. In particular, the Minigrip zipper system was constructed having a tear strip at the top of the package, a primary seal below the tear strip, and a zipper located below the primary seal. In use, the tear strip would be torn away transversely across the top of the package. The primary seal would then be opened by peeling apart the upper portions of the film material thereby exposing the zipper material. The zipper members would then be separated manually thereby allowing access to the snack-food chip product contained in the bag. The package would then be reclosed by manually reengaging the zipper material. 10. This prototype reclosable package was similar to all other commercially available reclosable packages that I became aware of in connection with my technical evaluation in that it was opened from the top of the package and above the zipper (from the "consumer side") to gain access to the contents of the package. 11. I understood from my involvement in the project and from conversations with Marc Jurgovan that we were having significant problems with the Minigrip design. In particular, the film would 37

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tear uncontrollably and randomly when the tear strips were torn across the top of the package. Also, when the primary seal (located above the zipper material) was opened, the inner laminar bonds of the Frito-Lay film would often fail causing further uncontrolled tearing down and into the package. Thus, Callahan and inventor Jurgovan believed that the Minigrip/Bosch design was unsatisfactory because "the film would tear uncontrollably and randomly when the tear strips were torn across the top of the package." 5, ¶11; JX2020 at 6, ¶16.) (FF 24; JX2021 at

Additionally, the inner laminar

bonds of the Frito-Lay film would often fail when the primary seal (located above the zipper material) was opened, further causing uncontrolled tearing down and into the package. (FF 25; JX2020 at 6, ¶16; JX2021 at 5, ¶11.)

Because the prior art and the proposed Minigrip/Bosch suffered from these shortcomings, Jurgovan sought a new reclosable package that was pinch-grip openable in one simple motion. 6; ¶¶11-14.) (FF 26; JX2020 at 7-8, ¶¶19-22; JX2021 at 5-

Specifically, the package "could be pinch grip

opened from the interior (or from the `product side') of the bag like consumers customarily open [Frito-Lay's] snack-food chip bags." (FF 27; JX2021, ¶14; column 3, lines 5-10 of

Jurgovan's `396 patent; page 5, lines 7-11 of Jurgovan's `646 application.) Jurgovan asserts that it conceived the invention by at least January 2, 1997. (FF 28.) 38 The evidence weighs in

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favor of Jurgovan's position that it conceived the invention prior to Ramsey's earliest conception date of March 29, 1997. To start, we have inventor Jurgovan's credible Specifically, Mr. Jurgovan

representations to this Board. avers (FF 35; JX2020 at 8):

22. In the latter part of December 1996, I conceived of a reclosable bag that could solve the problems we experienced with the Bosch/Minigrip prototype. In particular, I thought that we should not be attempting to incorporate a reclose structure which requires the transverse and downward forces on the standard Frito-Lay snack film that it was not designed to experience. Instead, I thought that we should use a reclose solution that took advantage of the standard way that consumers opened Frito-Lay's snack food product, i.e. in a pinch-grip motion. Mr. Jurgovan further explains (FF 36; id. at 8-9, ¶23): The top seal and the zipper material would be opened by manually gripping the front and back walls of the bag and pulling apart with a force that would open the zipper material and then the top seal of the bag from the product side outward in a single pinch-grip opening motion. Because we wanted the package to be reclosable, the flexible film needed to withstand the pinch grip opening process without tearing or deforming. I knew this was a quality of the Frito-Lay standard film which is opened using the pinch-grip motion without tearing or deformation. Mr. Jurgovan states that unlike the package proposed by Minigrip/Bosch, the invention would solve the problem of uncontrollable tearing that could occur with the tear strip as well as delamination of the film down into the bag as the primary seal is opened. (FF 37; id. at 9, ¶24.)

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An inventor's testimony alone is not sufficient to prove conception.6 Here, however, other evidence Mr. Jurgovan's

corroborates Mr. Jurgovan's representations.

averments are consistent with and fully supported by the unimpeached declaration of Mr. Callahan. According to Mr.

Callahan, inventor Jurgovan informed him about the inventions recited in the counts by January 24, 1997 at the latest. (FF 44; JX2021 at 6-7, ¶¶14-15.) Specifically, we

credit Mr. Callahan's testimony, which states (id.): 14. At least by January 24, 1997, Marc Jurgovan came to me and said that he thought he had an idea for a reclosable bag solution that is different from the Minigrip system, and that he thought it might be patentable. Mr. Jurgovan took me step-by-step through the elements of his invention. His concept was to have a reclosable bag that could be pinch grip opened from the interior (or from the "product side") of the bag like consumers customarily open snack-food chip bags. He explained that his invention involved attaching zipper material to the front and back walls of the Frito-Lay standard snack-food chip bag material so that the zipper could be engaged just below the top seal of the bag and above the food product. The Frito-Lay standard film used for its snack-food chip products is a flexible, elastomeric material. Mr. Jurgovan explained that consumers would open the top seal and the zipper material by manually gripping the front and back walls of the bag below the zipper material and pulling apart with a pinch grip pulling force that would open the zipper material and then the top seal of the bag, from the product side outward, in a single pinch-grip opening motion, without tearing or deforming the bag walls. The consumers could then remove a portion of the product and See, e.g., Price, 988 F.2d at 1194-95, 26 USPQ2d at 1036-37.
6

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reclose the package by manually reclosing the zipper material. [Emphasis added.] 15. Mr. Jurgovan also explained to me at this time that because zippers used in standard reclosable packages had internal ("product side") opening forces that were significantly larger than external ("consumer side") opening forces, he wanted to use a zipper having a reduced internal opening force. Otherwise, the large internal zipper opening force could cause the zipper to strip from the bag walls. He explained that to further avoid stripping the zipper material away from the package side walls, the zipper opening forces must approach the bond strength of the sealed film when opened. [Emphasis added.] In addition, Frito-Lay, Inc. Technology Notebook No. 3558 (FF 49, 59; JX 2033 at 1-2) contains notes and drawings that are consistent with the testimonies of Callahan and inventor Jurgovan.7 understanding that: "current flex bags" (i.e., existing Frito-Lay snack food packages) would be modified to be reclosable and would be openable using a "pinch-grip motion" the concept eliminates the need for problematic tear strips or peelable seals the "concept requires redesign of [a] Minigrip/Bosch proposed zipper to reduce zipper opening force (if opened) from [the] underside Mr. Jurgovan's notes (id.) reflect the

Mr. Jurgovan's notes and drawings were "witnessed and understood" by Mr. Callahan on January 24, 1997. 41

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of [the] zipper" and the "zipper opening force must approach (be lower than?) [the] bond strength of [the] sealed film when opened" the concept "eliminates concerns of package damage at or around [the] end seal/fin seal juncture" The drawings (FF 49; JX2033 at 2), reproduced on the following page, provide additional details of Jurgovan's concept.

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In the drawings, Mr. Jurgovan includes two package designs - one identified as "(EXISTING) MINIGRIP" and the other labeled as "(PROPOSED) M. JURGOVAN." The latter

depicted design shows an "A" side flexible film wall (i.e., an elastomeric wall), a "B" side flexible film wall, a top seal S1, a zipper part attached to the "A" side, and a zipper part attached to the "B" side. Mr. Jurgovan's notes

at JX2033 at 2 indicate that the "zipper opening force from top or bottom needs to approach sealed film opening force." As noted in Mr. Callahan's declaration, Mr. Jurgovan conveyed the idea "that to further avoid stripping the zipper material away from the package side walls, the zipper opening forces must approach the bond strength of the sealed film when opened." (FF 44; JX2021 at 6-7, ¶¶14-15.) Thus,

these drawings and notes describe every element of counts 1 and 2. Frito-Lay, Inc. Technology Notebook No. 3558 (FF 50; JX 2033 at 17) contains further evidence in support of Mr. Callahan's testimony in the form of certain drawings and notes, which were "witnessed and understood" by Mr. Callahan on February 24, 1997. This documentary evidence is

reproduced on the following page.

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Mr. Callahan declares (FF 51; JX2021 at 15, ¶31): Option 5 on page 17 [of JX2033], however, was Mr. Jurgovan's pinch grip design which I understood was considered by him to be the preferred concept. I understood Mr. Jurgovan's Option 5 to disclose a male zipper member attached to the interior surface of one side of a flexible bag wall material and a female zipper member attached to the interior surface of the an [sic] opposite side wall of the flexible package material. The drawing further shows that the male and female zipper members are engaged together below the top seal of the package and above where the food product would be located. I understood from this drawing that the zipper and top seal would be opened by pulling on the bag side walls below the zipper material with a pinch grip pulling force that would disengage the zipper members and open the top seal in a single pinch grip pulling motion. I also understood from this drawing that the package would be reclosed after the product is removed from the bag by manually re-engaging the zipper members. Mr. Jurgovan's description of his pinch grip invention was sufficiently detailed that a person working in bag reclosure technology could make and use a functional pinch grip openable reclosable bag without the exercise of special skill or undue experimentation. The declaration of Don Keel, a Senior Project Designer at Frito-Lay who is not an inventor in either of the Jurgovan `396 patent or `646 application, further buttresses Jurgovan's conception prior to March 29, 1997. Declaration of Don Keel, JX2023 at 3, ¶7.) (FF 52-53;

Mr. Keel recalls

that Mr. Jurgovan made a presentation to members of the Frito-Lay Technology group on February 20, 1997. Declaration of Don Keel, JX2023 at 3, ¶7.) Mr. Keel states (FF 54; id. at 4, ¶8): (FF 53;

Specifically,

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8. I understood from Mr. Jurgovan's presentation that he had conceived a snack food package with front and rear elastomeric walls sealed at the top and bottom and zipper elements attached to the walls and engaged with each other, whereby the zipper elements could be disengaged and the upper seal could be opened by the consumer applying a pinch-grip force to the front and rear walls below the zipper. This is reflected in the drawing of Option 5 at page 17 of the lab book (JX 2033). [Emphasis added.]. The testimonies of non-inventors Callahan and Keel,8 as well as Frito-Lay's laboratory notes, fully corroborate inventor Jurgovan's testimony. Taken together, the

preponderance of the evidence indicates that Jurgovan conceived of the inventions recited in the counts well before Ramsey's earliest conception date of March 29, 1997. Price, 988 F.2d at 1195, 26 USPQ2d at 1037 ("An evaluation of all pertinent evidence must be made so that a sound determination of the credibility of the inventor's story may be reached."). Ramsey argues that Jurgovan's idea lacks certain elements of the counts. Specifically, with respect to count

1, Ramsey contends that Jurgovan's idea lacks "any means or method for disengaging engaged first and second engagement members by application of a pulling force below the engagement members sufficient to disengage the members Ramsey does not rely on any cross-examination testimony of Callahan or Keel to challenge the accuracy or credibility of the averments made in the Callahan or Keel
8

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without stripping the members from their associated wall surfaces or tearing or deforming the walls." Opposition to JMJ at 1.) (Ramsey

With respect to count 2, Ramsey

urges that Jurgovan's idea lacks "any means or method for attaching engaged first and second zipper parts to front and rear walls, any means or method for manually pinch-grip opening such zipper parts without tearing or deforming the front and rear walls and any means or method for providing engaged engagement members manually openable upon application of a pinch-grip pulling force (rather than stripping from the wall upon application of such force)." (Id. at 1-2.) We find no merit in Ramsey's argument. Ramsey does not

accurately identify the language recited in the counts. Specifically, we find no language in either of the subject counts on applying a "pulling force below the engagement members [of the zipper parts] sufficient to disengage the members without stripping the members from their associated walls." Instead, the counts recite: "said front and rear

walls having a sufficient strength to resist tearing and deformation under the application of said pinch-grip pulling force during pinch-grip opening."

declaration. (FF 48; Ramsey Opposition to JMJ filed on May 13, 2005, Appendix A.) 48

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Even assuming that the subject counts inherently require the application of a "pulling force below the engagement members [of the zipper parts] sufficient to disengage the members without stripping the members from their associated walls," the evidence indicates that Jurgovan had possession of this concept and disclosed it to others before March 29, 1997. In particular, inventor

Jurgovan states (FF 55; JX2020 at 11, ¶29): Because my concept involved o