Interference No. 103,345
of the subject matter of the count, Roberge cites Jeffrey
Staples's "admission" that the drawing in the lower left-hand23
corner of Exhibit I shows the two gears required by the count.
However, this statement is not binding on Staples, because it
is contradicted by the drawing itself, which, as noted above,
does not show or necessarily imply the presence of such gears.
See Interstate Brands Corp. v. Celestial Seasonings, Inc., 576
F.2d 926, 929, 198 USPQ 151, 153-54 (CCPA 1978):
Facts alone may be "admitted." [Footnote omitted.]
In reaching the legal conclusion, the decision maker
may find that a fact, among those on which the
conclusion rests, has been admitted; he may not,
however, consider as 'admitted' a fact shown to be
non-existent by other evidence of record; nor may he
consider a party's opinion relating to the ultimate
conclusion an "admission."
Since this first model does not include the two gears, it did
not constitute an actual reduction to practice of the subject
matter of the count, in which case it is immaterial whether
this model was abandoned, suppressed, or concealed. See
Peeler v. Miller, 535 F.2d 647, 651, 190 USPQ 117, 120 (CCPA
1976) ("without an actual reduction to practice there is no
Supp. Aff., SR 4-5, para. 2.23
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