UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Marine Polymer Technologies, Inc.

v. Civil No. 06-cv-100-JD

Opinion No. 2010 DNH 060

HemCon, Inc.

O R D E R

Marine Polymer Technologies, Inc. moves in limine to

preclude HemCon from introducing uncorroborated testimony on

invalidity of the asserted ‘245 patent claims. HemCon agrees

that a witness’s testimony about invalidity must be corroborated

but argues that Marine Polymer urges an overly restrictive

standard for corroborating evidence. HemCon contends that the

sufficiency of corroborating evidence must be assessed in the

trial context.

Because patents are presumed to be valid, a party

challenging validity must present clear and convincing evidence

of invalidity. Hearing Components, Inc. v. Shure Inc., --- F.3d

---, 2010 WL 1236321, at *6 (Fed. Cir. Apr. 1, 2010). For that

reason, testimony offered to invalidate a patent must be

corroborated by other evidence. Finnigan Corp. v. Int’l Trade

Comm’n, 180 F.3d 1354, 1369-70 (Fed. Cir. 1999). “Both physical

evidence and oral testimony of a disinterested party can serve to

Case 1:06-cv-00100-JD Document 275 Filed 04/05/10 Page 1 of 3
satisfy the corroboration requirement.” TypeRight Keyboard Corp.

v. Microsoft Corp., 374 F.3d 1151, 1159 (Fed. Cir. 2004). 

“Documentary or physical evidence that is made contemporaneously

with the inventive process provides the most reliable proof that

the inventor’s testimony has been corroborated.” Sandt Tech.

Ltd. v. Resco Metal & Plastics Corp., 264 F.3d 1344, 1350-51

(Fed. Cir. 2001). In addition, “circumstantial evidence about

the inventive process” and “oral testimony of someone other than

the alleged inventor” may corroborate testimony of invalidity. 

Id. at 1351. The sufficiency of corroborating evidence is

decided under a “rule of reason” analysis, based on all of the

pertinent evidence, that may be determined by the court in

response to a pretrial challenge, see Martek Biosciences Corp. v.

Nutrinova, Inc. 579 F.3d 1363, 1374-76 (Fed. Cir. 2009), or may

be left for the jury, Adenta GmbH v. OrthoArm, Inc., 501 F.3d

1364, 1372 (Fed. Cir. 2007). 

Marine Polymer does not directly challenge any evidence of

invalidity as insufficient. By way of an example, Marine Polymer

contends that HemCon should not be allowed to introduce the

testimony of Dr. Paul Sandford, about a chitosan product

manufactured by Protan Inc., in the absence of corroborating

evidence. In response, HemCon agrees that evidence of invalidity

must be corroborated and represents that its invalidity evidence

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Case 1:06-cv-00100-JD Document 275 Filed 04/05/10 Page 2 of 3
at trial will be corroborated by “reliable third party testimony,

expert testimony, articles, treatises, and prior art patents.”

Based on the applicable standard, all testimony pertaining

to the invalidity of the ‘245 patent must be corroborated by

sufficient evidence to meet the rule of reason standard. Marine

Polymer has not shown that any particular evidence of invalidity

that will be offered by HemCon is not sufficiently corroborated

to be admissible. Therefore, the corroboration requirement

cannot be applied in the context of the motion.

Conclusion

For the foregoing reasons, Marine Polymer’s motion to

preclude uncorroborated testimony (document no. 202) is granted

to the extent that testimony of invalidity presented at trial

must be corroborated by other evidence.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

April 5, 2010

cc: Julie M. Baher, Esquire

Garet K. Galster, Esquire

Daniel R. Johnson, Esquire

Heather E. Krans, Esquire

Joseph A. Kromholz, Esquire

Lynda Q. Nguyen, Esquire

Brian M. Poissant, Esquire

Daniel D. Ryan, Esquire

Ognian V. Shentov, Esquire

Jonathan M. Shirley, Esquire

Daniel E. Will, Esquire

Leigh S. Willey, Esquire

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