Interference No. 103,197
detract from
the alleged February 1988 actual reduction to practice.
Furthermore, that argument is irrelevant to conception.
(h) Summary
The February 1988 tests fail as an actual reduction to
practice of the method recited in Count 5 because Morrison has
not demonstrated that the oximeter readings were not
responding to significant amounts of the following factors:
(a) shunt light;
(b) Insufficient light to the tissue site; and
(c) Motion artifacts due to needle movement.
Of these factors, (b) and (c) also apply to the November 1987
designs and thus render them insufficient to prove conception
of the subject matter of Count 5.
If Count 5 were replaced by proposed Buschmann Counts 2
and 4 or by proposed Mannheimer Count MAN-2, which are limited
to the I-O and O-I species of invasive tissue oximeters, the
November 1987 and February 1988 tests would fail as evidence
of conception and an actual reduction to practice for the
additional reason that they represent I-I species and thus
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