Interference No. 102,408
Thurston v. Wulff, 164 F.2d 612, 615, 76 USPQ 121, 124 (CCPA
1947) (“It must be emphasized that a test that agrees with the
theoretical C, H and N content of a desired compound does not
necessarily prove the identity of the same compound.”).
Furthermore, the evidence relied on by junior party Child
fails to establish that the results of the elemental analyses
of sample nos. 12459B-47B and 12459B-47A were appreciated
prior to the critical date. Exhibits 11 and 12 attached to
the Medwid declaration (CR96 and 97) appear to report two
different amounts of C, H, N, Pt and Cl for each sample, a
calculated amount and an amount obtained through elemental
analysis. At the very least, the evidence relied on by junior
party Child fails to establish that the discrepancies between
these two amounts were understood prior to the critical date.
See KB16-17. See Cooper, 154 F.3d at 1331, 47 USPQ2d at 1904
(to establish an actual reduction to practice, the inventor
must contemporaneously appreciate the invention at issue;
subsequent testing or later recognition may not be used to
show that a party had contemporaneous appreciation of the
invention). In addition, the evidence relied on by
junior party Child fails to establish that sample nos. 12459B-
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