Interference No. 103,414
relied upon as evidence of priority actually
worked for its intended purpose." Newkirk v.
Lulejian, 825 F.2d 1581, 1582, 3 USPQ2d 1793,
1794 (Fed. Cir. 1987). This is so even if
the "intended purpose" is not explicitly set
forth in the counts of the interference.
See, e.g., Elmore v. Schmitt, 278 F.2d 510,
125 USPQ 653 (CCPA 1960); Burns v. Curtis,
172 F.2d 588, 80 USPQ 587 (CCPA 1949).
However, the testimony does establish that by October 5, 1992,
Unistrut considered the partially tapered rivet to be
satisfactory for its intended use (Statement of Facts, ¶ 20). 7
The burden therefore shifts to Henry to prove a date of invention
prior to that date. English v. Ausnit, 38 USPQ2d 1625, 1630 (Bd.
Pat. App. & Int. 1993)(citing Kwon v. Perkins, 6 USPQ2d 1747,
1752 (Bd. Pat. App. & Int. 1988), aff'd, 866 F.2d 325, 12 USPQ2d
1308 (Fed. Cir. 1989); D'Amico v. Brown, 155 USPQ 534 (Bd. Pat.
Int. 1967); and Fisher v. Gardiner, 215 USPQ 620 (Bd. Pat. Int.
1981)).
G. Henry's case for priority
Although the count under either party's construction is
broad enough to encompass the pre-existing rivet, Henry's case
for priority fails because the evidence fails to identify,
directly or by implication, Henry as the inventor of that rivet.
See I Rivise & Caesar, Interference Law & Practice § 112, at p.
323 (Michie Co. 1940) ("a person cannot claim to be the inventor
7 Unistrut's September 29, 1992, expression of satisfaction
with this rivet was conditioned on further testing (Statement of
Facts, ¶ 15).
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