Interference No. 103,146
the same Briggs memo, BX-107, makes clear that in the next
batch of housings
manufactured, approximately 50% leaked. In our view, the
best evidence as to the severity of this problem is the
contemporaneous documents rather than the recollections of the
witnesses whose testimony was well after the time frame in
question. Taking BX-107, this Briggs memo does not use the
word “severe” as the junior party’s brief does, and the Briggs
memo does not convey a tone of alarm. The memo suggests
several possible solutions, and the overall tone of the
document is that of reporting a minor problem. The December
Young memo, BX-108, reports the solution to the leakage
problem.
It is our view that the leakage problem does not
negate the Elson reduction to practice. Firstly, the leakage
problems occurred well after the clinical testing had shown
that the device was suitable for its intended purpose. Not
one of the devices leaked in clinical testing. BX-107.
Secondly, it must be emphasized that the standard
for a reduction to practice is not commercial refinement.
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