Interference No. 102,668
testified that he confirmed the success of the August 1988
tests by signing Exhibits E and F, he did not confirm the
accuracy of the September 26, 1988, date that follows his
signatures on those exhibits. It is well settled that dates
on exhibits cannot be accepted as true without being explained
in an affidavit or testimony. See Cislak v. Wagner, 215 F.2d
275, 278, 103 USPQ 39, 41 (CCPA 1954) ("It [is] an essential
requirement that evidence be offered to show that an exhibit .
. . was, in fact, made on the date appearing thereon."); Sloan
v. Peterson, 129 F.2d 330, 337, 54 USPQ 96, 103 (CCPA 1942).
Compare Price v. Symsek, 988 F.2d 1187, 1196, 26 USPQ2d 1031,
1037-38 (Fed. Cir. 1993) (witness testified that she recalled
seeing drawing on or around the date appearing thereon). Nor
is there testimony by any other witness (including Cavanagh)
explaining when the test results were first considered to be
successful.
For the foregoing reasons, we conclude that Cavanagh
has failed to prove an actual reduction to practice prior to
McMahon's November 15, 1988, filing date, by a preponderance
of the evidence. As this is an essential element of
Cavanagh's priority case, we need not address Cavanagh's
- 26 -
Page: Previous 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 Next
Last modified: November 3, 2007