Interference No. 104,290
Coglianese, 455 F.2d 1064, 1068, 173 USPQ 16, 19 (1972)). See
also Pove2J, v. Poup-itch, 167 F.2d 514, 77 USPQ 379 (CCPA
1948)(aircraft rivet not specifically stated for aircraft in the
count, not reduced to practice without flight testing). It is
our finding that the intended functional setting of the subject
matter of the count is to ablate targeted tissue such as tumors
in an organ of a living subject. The functional setting of the
subject matter of the count is not for ablating or cooking small
portions of explanted organs with an electrosurgical unit.
Such a functional setting would appear to have little utility.
Accordingly, Hansen's testimony i.s not irrelevant on the ground
alleged by LeVeen, and it will not be suppressed on this basis.
Furthermore, Hansen has not required that the subject matter of
the count be of commercial refinement in his opinion testimony as
alleged by LeVeen. We do not find such a requirement in Hansen's
declaration or deposition.
For the above discussed reasons, the LeVeen Motion 16
to suppress the Hansen testimony is DENIED.
The LeVeen Case for Priority of Invention
For victory in the priority phase of this final hear
ing, LeVeen is relying on an alleged actual reduction to practice
10
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