Interference No. 101,981
Batlogg’s Case For Priority
Our finding that Batlogg is the presumptive first inventor
is predicated on Batlogg being entitled to constructive reduction
to practice of the invention of the count as of the filing date
of their application. Otherwise, we would have to determine
whether Batlogg is entitled to their date of simultaneous
conception and actual reduction to practice. By relying on
Batlogg’s filing date, we are in effect presuming Batlogg is
entitled to claim the subject matter of the count. However, that
very issue – whether Batlogg’s claims corresponding to the count
in the interference are patentable to Batlogg and therefore
entitled to constructive reduction to practice of the invention
of the count as of their filing date – is raised by the junior
parties by way of both motion and issue in their briefs; albeit,
Batlogg has filed motions to suppress the evidence put forward by
the junior parties to support their positions regarding the
sufficiency of Batlogg’s patent application. We explore this
issue below and for reasons we detail infra, we hold that Batlogg
is indeed entitled to constructive reduction to practice as of
March 3, 1987. Consequently, this eliminates the need to
consider whether Batlogg had actually reduced their invention to
practice.
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