Interference No. 103,197
into a spiral configuration. In these tests, I first
obtained an oxygen saturation reading with an optical
fiber before inserting the optical fiber into a metal
tube. Then I would bend the fiber by passing the optical
fiber into and through a metal tube and then wind the
metal tube, with the optical fiber extending
therethrough, into a corkscrew configuration. Once the
metal tube was in this corkscrew configuration, I would
test the probe again to see if an oxygen saturation
reading could be obtained. I performed this type of test
to evaluate: (1) the technique of winding needles around
mandrels; (2) different needles of different
manufacturers; (3) different wall thicknesses of needles
and different gauges; (4) and how each of these different
parameters affected the optical fibers. In order to make
these tests, we bought thousands of hollow needles, most
of them from Baxter Healthcare Corporation.
This testimony lacks clear corroboration. The problem with
Helen Morrison's testimony has already been mentioned. Ted
Johnson's testimony that sometime during the fall of 1988, he
sent Dr. Morrison a sample of an optical fiber wound in a
hollow spiral needle establishes only that this act occurred
by the end of the fall of 1988. See Haultain v. DeWindt,
254 F.2d 141, 142, 117 USPQ 278, 279 (CCPA 1958) ("where
testimony merely places the acts within a stated time period,
the inventor has not established a date for his activities
earlier than the last day of the period").
In view of Morrison's failure to show diligent
activity or an acceptable excuse for inactivity during the
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