Bard Peripheral Vascular, Inc. v. WL Gore

23BARD PERIPHERAL v. WL GOREvessels of 4–5 mm diameter over prolonged periods,”“neither [h]e nor others in the U.S. [we]re having suchgood luck.” J.A. 41829. Finally, Dr. Charles Campbelldeclared that “[e]fforts in this country to duplicate theresults of Matsumoto have met with failure.” J.A. 46193.Thus, Bard presented substantial evidence for the jury tofind that Matsumoto does not enable a person of ordinaryskill in the art to make the invention without undueexperimentation and cannot be used as anticipatory priorart.Even if Matsumoto were a proper prior art reference,there is substantial evidence that Matsumoto does notanticipate the claimed invention. The asserted claimsrequire specific “average distance[s] between nodes.” ’135patent, col.12 ll.4–5, 24, 33, 38. Dr. Jock Wheeler, Gore’sown technical expert, testified that Matsumoto, however,did not refer to internodal distance, which was “really notmentioned in th[e] article.” J.A. 12064. Although he alsostated that the internodal distance could be “readilycalculated from figure 4” of Matsumoto, J.A. 11247,Goldfarb testified that “there was a fair amount of inconsistency. . . along each graft” so the portion of the graftsurface depicted in figure 4 was not representative of theentire graft. J.A. 9371.In the Interference, Cooper himself argued that “[o]neis left to speculate as to whether this small portion of theMatsumoto graft is representative of the fibril lengththroughout the entire graft.” J.A. 41926. Further, thiscourt noted that Harold Green, “the individual responsiblefor manufacturing expanded PTFE tubing for Gore in1972–73,” testified that there was “difficulty controllingthe uniformity of the PTFE material” and that “fibrillengths vary along each tube.” Cooper I, 154 F.3d at 1329.The court also noted that Goldfarb testified that “fibril