Interference No. 104,290
mass" to mean a preselected mass. There is no evidence that any
area in the explanted livers was first targeted, the apparatus
used, and the target area inspected to compare the actual abla
tion accomplished to that ablation desired in the targeted area.
Next, there is no convincing evidence that the experi
ments were successful. Discounting conclusory statements from
Fox, LeVeen and Kilzer made years after the experiments were
undertaken, no standards for success were ever established and
no contemporaneous recognition of success can be found in the
records. Indeed, a grant proposal indicates the results were
preliminary, and testimony and the grant proposal indicates the
experiments were merely exploratory in nature.
Thirdly, the invention was not tested in its intended
functional setting, so the inventors did not determine that it
would work for its intended purpose. The interference subject
matter was tested in an explanted liver in repose on an electrode
plate. Credible testimony establishes that such experimental
conditions do not simulate the impedance of the body of a
patient, the movement of the organs in a patient under surgical
conditions, or the heat-sink/cooling effect of blood flow of a
living organism. Our findings of fact and conclusion of law
follow.
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