Interference No. 103,414
Henry's reliance on Kridl and Coleman is misplaced, as these
cases do not preclude a party from proving priority based on a
device which includes more elements than are recited in the
count. Furthermore, the presence of "comprising" in the count's
preamble permits Ellis to prove priority with a rivet that
includes more than two shank portions, including Ellis's three-
stage rivet and his partially tapered rivet. See Genentec,
112 F.3d at 501, 42 USPQ2d at 1613:
This interpretation of the count [as not excluding
certain features] is consistent with the open-ended
term "comprising." "Comprising" is a term of art used
in claim language which means that the named elements
are essential, but other elements may be added and
still form a construct within the scope of the claim.
In re Baxter, 656 F.2d [679,] 686, 210 USPQ [795,] 802
[(CCPA 1981)].
F. Ellis's case for prior conception
and prior actual reduction to practice
Although Henry does not dispute Ellis's claim that both
the three-stage rivet and the partially tapered rivet were
conceived and actually reduced to practice prior to Henry's
December 9, 1992, filing date, we hold that Ellis has failed to
prove the alleged actual reduction to practice of the three-stage
rivet, because O'Rourke's testimony establishes that Unistrut
considered this design unsatisfactory for its intended purpose of
joining together two tubes and a fitting (Statement of Facts,
¶ 13). See DSL Dynamic Sciences Ltd. v. Union Switch & Signal ,
928 F.2d 1122, 1125, 18 USPQ2d 1152, 1154 (Fed. Cir. 1991):
[P]roof of actual reduction to practice
requires a showing that "the embodiment
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