In Winner Int'l Royalty Corp. v. Wang, 202
F.3d 1340, 53 USPQ2d 1580 (Fed. Cir. 2000)("Winner v.
Wang"), a panel of the Federal Circuit asserted that
the administrative patent judges ("APJs") can never hear
and see witnesses under examination and cross-examination and that,
accordingly, they cannot make credibility assessments. As I
pointed out in Gholz,
The Board Does Hear Live Testimony and Make Credibility
Determinations!, 18 Intellectual Property Today No. 12 at
page 12 (2011), "neither party [in Winner v.
Wang] asserted that the APJs never hear live testimony or
make 'live credibility assessments.' The court came up
with those assertions entirely on its own." Id. at page
13 n. 16; emphasis deleted. Moreover, the panel's
assertions were factually incorrect as of the day that it made them
and, as also pointed out in that article, continued to be contrary
to the APJs' subsequent practice. Nevertheless, other
panels of the Federal Circuit mindlessly repeated what
