Interference No. 101,981
practice, Batlogg, without further proof, could have at least
relied on their filing date as their date of constructive
reduction to practice. As the CCPA has stated in Nolop v. Smith,
36 F.2d 838, 839, 4 USPQ 316, 318 (CCPA 1930):
. . . we are not at liberty to [ignore the dates set out in
the preliminary statement], except as to allowing an earlier
date of constructive reduction to practice. Upon this
question we agree with the Commissioner that appellant is
entitled to the date of filing of her application, Feb. 19,
1924, for a constructive reduction to practice. This was
permissible because the records of the Patent Office show
that as a matter of law she was entitled to that date, and no
proof was
necessary to establish it, and no other date could have been
set up so far as constructive reduction to practice was
concerned.
Therefore, even if Beyers could establish conception with
subsequent reduction to practice, at best their earliest date –
March 3 - falls on the same day as Batlogg’s constructive
reduction to practice. Under these circumstances (i.e., “a tie”),
Batlogg is the presumptive first inventor.
We find, therefore, that the junior parties have not proved
prior invention by a preponderance of the evidence and that
Batlogg is the presumptive first inventor.
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