Interference No. 103,891
concept to Lisa Terrett. MR2, ¶ 4. As described in ¶ 4 of
Moorman’s declaration, the strip has one zone to react to the
specific analyte of interest. A second zone is a so-called
positive zone, and a third zone is the so-called negative zone.
However, ¶ 4 does not state that the zones are in a direction of
fluid flow, nor does it state that the positive zone contains
immobilized analyte of interest in solubilizible form. MR2, ¶ 4.
Moorman ¶ 10 describes an experiment on April 13, 1988
in detail. The experiment is also described at ¶ 16 of Terrett’s
declaration. MR21. Terrett’s laboratory notebook pages describ-
ing the experiment are at MX-4. Page 2 of the notebook shows a
successful experiment of a test strip that has both positive and
negative controls. MX-4 at 2.
Junior party Flanders argues, in reply, that the test
of April 13, 1988 cannot be considered a reduction to practice,
because there is no indication in the Moorman record that the
Strep A antigen added to the positive control zone as the analyte
of interest is in solubilizible form as required by the count in
interference. Thus, we are called on to construe the terminology
of the count.
The proper interpretation of a count is a question of
law. Credle v. Bond, 25 F.3d 1566, 1571, 30 USPQ2d 1911, 1915
21
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