Interference 102,413 Page 18
Pitha v. Muller
An actual reduction to practice requires proof of the
existence of a physical embodiment within the scope of the
count. Correge v. Murphy, 705 F.2d 1326, 1329, 217 USPQ 753,
755 (Fed. Cir. 1983). The embodiment relied upon for an
actual reduction to practice must include every limitation
stated in the count. Schendel v. Curtis, 83 F.3d 1399, 1402,
38 USPQ2d 1743, 1746 (Fed. Cir. 1996). The evidence must also
show that the embodiment is suitable for and actually worked
for its intended purpose. Scott v. Finney, 34 F.3d 1058,
1061, 32 USPQ2d 1115, 1118 (Fed. Cir. 1994). Testing need not
show utility beyond a possibility of failure, but only utility
beyond a probability of failure. Scott, 34 F.3d at 1061-62,
32 USPQ2d at 1118. There is no requirement that the
embodiment be in a "commercially satisfactory stage of
development" to constitute a reduction to practice. Scott, 34
F.3d at 1063, 32 USPQ2d at 1118.
The sole count in this interference follows:
Count 3
A method of producing a stabilized amorphous complex
of a drug and a mixture of cyclodextrins which
comprises the steps of:
1. Dissolving an intrinsically amorphous mixture
of cyclodextrin derivatives which are water
soluble and capable of forming inclusion
complexes with drugs in water; and
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