Interference No. 103,141
paragraph 1 must be met by the earlier application). For an
earlier-filed application to serve as constructive reduction
to practice of the subject matter of an interference count,
the applicant must
describe the subject matter of the count in terms that
establish
that he was in possession of the later-claimed invention,
including all of the elements and limitations presented in the
count, at the time of the earlier filing. Hyatt, 146 F.3d at
1353, 47 USPQ2d at 1131.
Judge Smith, in his first motion decision, had
denied Sawada benefit with respect to proposed count A for the
reason that count A was not added to the interference. In
addition, he denied Sawada benefit with respect to new count
3, because new count 3 required orifice-free cladding. Judge
Smith made the factual finding that Japanese Application No.
62-25224 disclosed the cladding as a normal metal pipe packed
with the powder oxide, and “‘224 is silent as to whether the
pipe containing the powder is sealed [at the ends].” Sawada 17
17Paper No. 82 at 7.
21
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