Interference No. 103,891
of proving priority by a preponderance of the evidence. See
Cooper v. Goldfarb, 154 F.3d 1321, 1326, 47 USPQ2d 1896, 1900
(Fed. Cir. 1998)(quoting Scott v. Finney, 34 F.3d 1058, 1061,
32 USPQ2d 1115, 1117 (Fed. Cir. 1994)). Priority, conception,
and reduction to practice are questions of law which are based on
subsidiary factual findings. Cooper at 1327, 47 USPQ2d at 1901.
Flanders’ case of priority is bottomed on an actual reduction to
practice. In order to establish an actual reduction to practice,
the inventors must prove that: (1)they constructed an embodiment
or performed a process that met all the limitations of the
interference count; and (2) they determined that the invention
would work for its intended purpose. Id.
The following are our factual findings respecting
Flanders’ case for priority. Beginning in about June 1988,
Dr. Varitek commenced work on an assay test strip with a positive
and negative control. FR135. FX-19 at 61 shows a sketch of a
test strip. The sketch was made by Dr. Varitek on June 1, 1988.
The sketch shows a strip, the top portion of which is divided
longitudinally, with two columns–-the left column marked PC and
the right column marked NC. About two-thirds of the way down the
strip is a cross. Below the sketch of the strip is a table that
shows the possible combinations of readings. Finally, below the
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