Interference No. 104,290
before the filing date of the senior party benefit application
which was November 8, 1993. As the junior party in an interfer
ence between cases which were at one time co-pending, junior
party LeVeen bears the burden of proving priority, in this case
an actual reduction to practice, by a preponderance of the
evidence. See Cooper v. Goldfarb, 154 F.3d 1321, 1326, 47 USPQ2d
1896, 1900 (Fed. Cir. 1998) (cjuoting Scott v. Finney, 34 F.3d
1058, 1061, 32 USPQ2d 1115, 1117 (Fed. Cir. 1994)). Priority,
conception, and reduction to practice are questions of law which
are based on subsidiary factual findings. Cooper, 154 F.3d at
1327, 47 USPQ2d at 1901. In order to establish an actual reduc
tion to practice, the inventor must prove that: (1) he con
structed an embodiment or performed a process that met all the
limitations of the interference count; and (2) the invention
worked for its intended purpose. Id.
It is our determination based on the following findings
of fact that LeVeen has not established an actual reduction to
practice before the critical November 8, 1993, date for the
following reasons:
First, all limitations of the count were not reduced to
practice. We have construed the count limitation of "selected
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