passage and to perform cutting and visualizing. The evaluation
form merely asks the reader questions about the "Ultratome XL."
None of the questions or responses to the questions indicate
affirmatively that the device was actually used in a patient.
The questions and answers could easily apply to evaluating the
product outside of a patient, or what the evaluator believed
without actually using the device on a patient.
For all of the above reasons, Rowland has failed to
sufficiently demonstrate, by a preponderance of the evidence,
that it reduced the invention to practice on 8 February 1994.
Although Rowland has failed to prove an actual reduction to
practice on 8 February 1994, we will address Rowland's argument
that it was diligent from a time prior to Weaver's effective
filing date until Rowland's alleged 8 February 1994 reduction to
practice date. In that respect, Rowland has failed to
sufficiently demonstrate that it was diligent.
The date of activity that Rowland relies on that is prior to
Weaver's 31 January 1994 effective filing date is 10 January
1994. At that time, a letter was sent to Dr. Bohorfoush
requesting that he evaluate the "Ultratome XL" (Rowland Ex.
2032). As stated above, the letter is hearsay and should not be
considered. Even considering the document, Rowland has failed to
account for the time between the 10 January 1994 letter and 8
February 1994.
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