Interference No. 103,891
table is a written explanation of what the results in the table
represent. The disclosed test strip does not have the various
test zones arrayed in the flow order as required by the count.
In November 1988, Dr. Varitek and his laboratory
assistant Ms. Laurie Watts nee Powers 9 commenced experiments on
an assay test strip they called “Strep Strip Pack.” FR13; FR31;
FR137. Ms. Watts describes the test strip as it was described
to her in ¶ 4 of her declaration. This description includes the
idea that the test “zones would be positioned on the strip such
that the flow of applied fluid would pass though [sic, through]
each zone by capillary action.” FR14. 10 Although no contempora-
neous drawing describes the test strip, Watts provides the
necessary corroboration.11 Thus, we credit Flanders with a
9 Hereinafter, Ms. Watts.
10 The date in the first line of ¶ 4 of Ms. Watts' declara-
tion at FR14 should read November 9, 1988 not 1989. This was
corrected during cross-examination at FR 31.
11 Moorman argues that there is no contemporaneous drawing
of the conception. In the interference Lustig v. Legat, 154 F.2d
680, 682, 69 USPQ 345, 348 (CCPA 1946), Lustig argued that the
Board improperly awarded priority to Legat upon a record most of
which consisted of oral testimony and which was adduced a number
of years after the events were alleged to have happened. Lustig
further complained of a lack of sufficient documentary evidence,
particularly records kept by corporations such as that of Legat's
assignee relating to shop drawings, time cards, etc.
In Lustig, 154 F.2d at 682, 69 USPQ at 348, the court
held:
(continued...)
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