Interference No. 103,414
As shown in Figures 3 and 4 of Ellis's application
drawings and as explained in the testimony, Ellis's rivets were
designed to accommodate as many as three structural members
(elements 28a-28c), whereas the pre-existing rivets that were
being supplied by Southco to Unistrut were capable of
satisfactorily joining only two structural members (Statement of
Facts, ¶ 6). Henry argues that neither of Ellis's rivet designs,
both of which he characterizes as "three-stage" rivets, can be
relied on as evidence of priority, because the count is directed
to the pre-existing rivet, which Henry characterizes as a "two-
stage" rivet of his own design (H.Br.7). For the following
reasons, this "two-stage" characterization of the pre-existing
rivet appears to be incorrect. The record before us does not
include a drawing of the pre-existing rivet; although it is
allegedly (H.Br. 7) shown in the sketch which accompanied Henry's
preliminary statement (paper No. 9), § 1.629(e) precludes Henry
from relying on it as evidence of priority. 4 Nevertheless, Henry
correctly argues (H.Br. 7-10) that the structure of the pre-
existing rivet can be deduced from the testimony and exhibits
which explain the development of Ellis's rivet designs. We note
in particular EX 9, one of the drawings of Ellis's three-stage
rivet (Statement of Facts, ¶ 11), which shows a shank consisting
of three cylindrical portions with diameters of 0.531", 0.500",
and 0.406" joined by two tapered portions. The testimony that
4 That provision reads: "A preliminary statement shall not be
used as evidence on behalf of the party filing the statement.”
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