Under such conditions, some courts have held that the presumption of validity is strengthened. See, e.g., Darda Toys USA v. Majorette Toys (U.S.), 627 F. Supp. 1121 (S.D.Fla. 1986), reversed in part on other grounds, 824 F.2d 976 (Fed. Cir. 1987) (Table) (Text in Westlaw). Conversely, courts have held that the party alleging patent invalidity is more likely to carry its burden of persuasion if it provides pertinent prior art not considered by the PTO. Jervis B. Webb v. Southern Systems, 742 F.2d 1388 (Fed. Cir. 1984); Connell v. Sears, Roebuck Co., 722 F.2d 1542 (Fed. Cir. 1983).

The existence of disputed facts was irrelevant to the method of disposition: It was a record review. See Long v. United States, 12 Cl. Ct. 174, 176, aff'd, 824 F.2d 976 (1987) (unpubl). Although RCFC 56.1 also serves as a tool for setting forth the facts that give rise to bid protest cases, the standards for disposition pursuant to the Rule 56 standards for summary judgment are neither displaced nor modified.