Interference No. 104,190
to diverge. On the one hand, the written meeting summary by
O’Brien explicitly states “poor mechanical cut.” After a
single test on living tissue, this design was “retired,” put
away in a box. PR188. No further testing was ever done. PR
187. O’Brien could not recall the PX-10 hook scissors ever
being discussed again. PR375. Thus, the contemporaneous
record has all the circum- stantial earmarks of a failed test,
a dead-end design.13
To the contrary, the after-the-fact testimony while
admitting the design had problems cutting--in some tissue it
nibbled rather than actually cut--has both O’Brien and Rydell
testifying that the device “worked pretty well,” but needed
whether the inventor considered the test to be successful at
the time. Rexroth v. Gunther, 205 USPQ 666, 673 (Bd. Pat.
Int. 1979)(citing Smith v. Nevin, 73 F.2d 940, 23 USPQ 353,
357 (CCPA 1934)).
13In the junior party reply brief, there is an argument
that development proceeded directly from the PX-10 prototype,
i.e., Rydell’s testimony that “we learned what we wanted to
learn from it.” PR190-192. We do not find this testimony
inconsistent with a failed prototype that was retired.
Testimony with regard to any other prototype based on a
similar design is vague and uncorroborated. PR192-93. It has
been given no weight.
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