Interference No. 102,668
is required to establish the invention's operability for its
intended purpose.17
Packard, the only witness who claims to have seen a
test of a transducer that allegedly satisfies the count,
testified as follows (CR 4-5):18
2. To the best of my recollection, during the
month of August, 1988, I witnessed the operation of
[sic, a] transducer design prototype invented by Mr.
George H. Cavanagh III as described in Exhibits "A",
"B", "D" in the §1.608(b) Declaration filed by Mr.
Cavanagh, dated 9/19/90 [CR 2-3].
3. This device was tested in my presence at the
Hazeltine facility known as "the quarry". The test
results obtained during August, 1988 are shown in
Exhibit "C" of the above-referenced declaration.
Further, I signed Mr. Cavanagh's Engineering note
book, pages 12548-3 & 12548-31, marked Exhibits "E"
and "F" respectively, copies attached hereto,
confirming that I had witnessed successful operation
of the above-referenced invention during August,
1988.
Cavanagh does not contend that the operability of the17
invention is ascertainable from mere inspection of an embodiment
of the invention, as is necessary to avoid the need for testing.
Compare In re Asahi/America, Inc., 68 F.3d 442, 445, 37 USPQ2d
1204, 1206 (Fed. Cir. 1995) ("[t]here are some devices so simple
that a mere construction of them is all that is necessary to
constitute a reduction to practice") (quoting Sachs v. Wadsworth,
48 F.2d 928, 929, 9 USPQ 252, 253 (CCPA 1931)).
Cavanagh Record.18
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