Interference No. 103,891
that there are several ways to implement a positive control. Id.
We note nothing in the Concept S presentation that states that
the analyte of interest, in solubilizible form, is placed on the
test strip for a positive control. We further note the conclu-
sion of Dr. Salvati in the last sentence of paragraph 9 of his
declaration at FR7. Dr. Salvati states that the positive control
one would use on the device of the marketing summary would have
been a control with an “on board” reactant. This is a conclusory
statement not supported by any facts stated by Dr. Salvati.
Consequently, it is difficult to see how Concept S can be an
enabling disclosure as required by the jurisprudence.
Our finding with respect to Concept S is that although
there was public knowledge of a test strip in July 1989, that
knowledge would not have enabled one of ordinary skill to make
and use the invention. The presentation of Concept S was not a
reference under §§ 102(a), (b), or 103 with respect to the
claimed subject matter. The 37 CFR § 1.633(a) motions for
judgment based on unpatentability with respect to Concept S
are DENIED.
Flanders' Case for Priority of Invention
As the junior party in an interference between
co-pending applications, junior party Flanders bears the burden
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