Interference No. 104,067
and that it exercised reasonable diligence in later reducing that
invention to practice.").'
In his brief at final hearing, Kramp relies on a disclosure
document dated December 23, 1992, to establish an actual
reduction to practice on even date. See Kramp Exhibit 1.
According to Kramp, the disclosure document, particularly copies
of photographs attached thereto and a listing of "parts," shows
that a machine corresponding to the subject matter of the count
was made and operated at least as early as December 23, 1992.
See Brief, pages 7-8.
Kramp further argues that the alleged actual reduction to
practice is corroborated by Peter K. Trzyna and Leslie F. Chard,
III, who were said to have received the disclosure document on or
about December 23, 1992. The disclosure document is said to have
been acknowledged in a patentability opinion dated February 19,
1993, and signed by Peter K. Trzyna and Leslie F. Chard, III.
See Brief, p. 7; Kramp Exhibit 2, p. 1.
7Alternatively, a party may establish priority by proving a
conception of the subject matter of the count before the senior
party's effective filing date, coupled with reasonable diligence
prior to that date up to a constructive reduction to practice.
Wilson v. Sherts, 81 F.2d 755, 759, 28 USPQ 379, 383 (CCPA 1936).
However, Kramp cannot establish priority in this manner because
Kramp has made no assertion or showing of diligence. Paine v.
Inoue, 195 USPQ 598, 603 (Bd. Pat. Int. 1976).
7
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