Interference No. 103,197
area" of the "monitoring device" reads on the hypodermic
needle and optical fiber that receive red and infrared light
from the tissue under examination. Moreover, the fact that
both hypodermic needles are to be stuck into the tissue
satisfies the requirement of the count for sticking at least
one of the sensor areas invasively stuck into the tissue and
emitting radiation from the radiation emitting sensor area to
illuminate the tissue between the sensor areas. The question
remains whether Morrison has also established by a
preponderance of the evidence that at least one of those
designs represents an operative invention. Burroughs Welcome
40 F.3d at 1227-288, 32 USPQ2d at 1919. As evidence of the
operability of the November 1987 designs, Morrison cites tests
carried out by Dr. Morrison in February 1988 and offered prove
an actual reduction to practice.
2. The alleged February 1988 actual reduction to
practice
Count 5 reads as follows:
A method of monitoring the condition of living
tissue with a monitoring device comprising a radiation
emitter sensor area and a radiation sensor area, said
method comprising invasively sticking at least one sensor
area into said tissue, emitting radiation from said
radiation emitting [sic, emitter] sensor area to
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