Appeal No. 2002-0405
Application No. 07/325,269
2. The Rule 131 Declarations
In the event that the appellants attempt to swear behind the
publication date of Wu, i.e., March 2, 1987, we note the
following deficiencies in the Rule 131 declarations. In order to
establish invention prior to the effective date of a reference,
the declarant must “establish reduction to practice prior to the
effective date of the reference, or conception of the invention
prior to the effective date of the reference coupled with due
diligence from prior to said date to a subsequent reduction to
practice or to the filing of the application.” 37 CFR § 1.131.
The declaration filed October 20, 1995 under 37 CFR § 1.131 is
insufficient to establish a date of invention prior to March 2,
1987. The declaration relies on events which were documented in
an Invention Disclosure. See Oct. 20, 1995 Declaration,
paragraphs 4 & 5. However, the Invention Disclosure itself is
not provided as an exhibit. The declarants state that one of the
inventors discussed the “invention” with scientists on or about
February 10, 1987. Id. at paragraph 5. Declarants further
allege that the inventors worked “as time and budget allowed
throughout February and early March” until completion of the
experiments described in Exhibit 1 of their previous declaration.
Id. at paragraph 6. These statements alone do not establish due
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