Interference No. 102,408
produced prior to the critical date.
As discussed above, to establish an actual reduction to
practice, junior party Child must prove, inter alia, (1) that
a compound satisfying the limitations of the count was
produced prior to the critical date and (2) that the inventors
had contemporaneous appreciation of the compound produced.
Estee Lauder, 129 F.3d at 592, 44 USPQ2d at 1613; Cooper v.
Goldfarb, 154 F.3d 1321, 1331, 47 USPQ2d 1896, 1904 (Fed. Cir.
1998).
According to John C. James (CR4, ¶ 10):
I have reviewed each of Exhibits O-R and T-V
[(CR20-23 and 25-27)] to compare the structural
formula which is written on each Exhibit with the
infrared absorption curve and confirm that the
infrared curve for each structural formula is
consistent with each structural formula.
However, James' conclusions that the curves are
"consistent with" the structural formula provided on the
spectroscopy request card alone fail to "confirm" that a
compound satisfying the limitations of the count was produced
(KB15; KB20). See In re Brandstadter, 484 F.2d 1395, 1406,
179 USPQ 286, 294 (CCPA 1973) ("the affidavits fail in their
purpose since they recite conclusions and few facts to
buttress said conclusions"); see also Rohm and Haas Co. v.
20
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