WHISENANT V. WAGNER - Page 7




          Interference No. 103,467                                                    



          its intended purpose may require testing.  See Mahurkar v.                  
          C.R.                                                                        
          Bard Inc., 79 F.3d 1572, 1578, 38 USPQ2d 1288, 1291 (Fed. Cir.              
          1996).  When testing is necessary, the embodiment relied upon               
          as evidence of priority must actually work for its intended                 
          purpose.  See Scott, 34 F.3d at 1061, 32 USPQ2d at 1117.                    
                    When an inventor's testimony merely places acts                   
          within a stated time period, the inventor has not established               
          a date for his activities earlier than the last day of the                  
          period.  Oka v. Youssefyeh, 849 F.2d 581, 584, 7 USPQ2d 1169,               
          1172 (Fed. Cir. 1988).  The junior party may rely on inventive              
          acts in Bahrain  by virtue of 35 U.S.C.  104.  Therefore, in               
          accordance with our above-noted factual findings, we credit                 
          the junior party with an actual reduction to practice as of                 
          March 15, 1992.  Junior party has proven priority of invention              
          by antedating the senior party’s effective filing date.  We                 
          enter judgment in favor of the junior party.                                
                                      Judgment                                        
                    Judgment in Interference No. 103,467 is entered                   
          against Russell R. Wagner, the senior party.  Russell R.                    

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