Interference No. 103,891
antigen added to the positive control is inherently solubiliz-
ible, then Moorman has a duty of showing that this is the case,
for Moorman must affirmatively prove that he reduced to practice
every element of the count for priority purposes. We merely note
that Terrett states that the Strep A antigen is placed on the
latex dot15 which would imply prereaction rather than placing
the antigen upstream in a flow direction therefrom. Moreover,
Moorman, in arguing that not all of the Strep A antigen is
prereacted with the strep antibody in the positive control zone,
confirms that Flanders’ theory of prereaction has merit. If it
is indeed true that not all Strep A antigen is prereacted leaving
some to solubilize, then it is incumbent on Moorman to so state
and prove on the record. This is part of Moorman’s burden of
proof for his case-in-chief. This Moorman has not done. 16
14(...continued)
was placed on the latex dot on April 5, 1988, also. In any
event, Moorman has the burden of showing that all features of
the count were present on April 5, 1988, and MX3 does not affir-
matively confirm that every feature of the count was reduced to
practice.
15 The latex already contains the strep antibody.
16 Moorman discusses, but is not able to explain, MX15 which
clearly states, “[d]uring the impregnation, antibody-latex
conjugate and analyte diffuse and bind to each other to form a
specific analyte-antibody-latex complex in the positive zone.”
This is Moorman's description of the invention in an invention
disclosure, and it supports Flanders' argument respecting no
proof of solulizible analyte in the positive test zone.
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