Interference No. 104,190
in prosecution. While we have determined that the PX-10
embodiment is outside the scope of the count, we do
acknowledge that the junior party has provided sufficient
evidence of conception of that PX-10 hooked scissors
embodiment, albeit outside the scope of the count, by at least
December 19, 1991, based upon the corroborating evidence from
O’Brien.
Secondly, it is our further legal conclusion that
the testing of the PX-10 embodiment on the live dog in
December 1991 was not a reduction to practice for the
additional reason that the testing was unsuccessful. Both the
parties and the preamble
to the count agree that the function of the interference
subject matter is a dual one. Not only must the device
coagulate, but it must cut tissue. We have sifted the
conflicting evidence and reached a determination that the test
was unsuccessful with regard to cutting ability.
Consequently, we do not credit the junior party with a
reduction to practice for this second, additional reason. The
testing was unsuccessful.
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