Interference No. 104,290
of testing of such a device would establish an actual reduction
to practice, the court considered the in-an-out implantation and
actuation of the device in a human subject's penis sufficient to
establish a reduction to practice. Clearly, mere bench testing
did not suffice. In Manning v. ParacLis, 2002 U.S. App. LEXIS
14026, the subject matter concerned treating a patient in cardiac
arrest by perfusing the aortic arch with an oxygen-rich solution.
A well instrumented test in a living dog was held not to be a
successful experiment establishing a reduction to practice of the
claimed invention. Clearly bench testing would not have sufficed
to establish that the invention actually worked for its intended
purpose.
We have previously made factual findings, in relation
to the motion to suppress Hansen's testimony, concerning the
functional setting of the interfering subject matter. Our
finding was that the functional setting for the interference
subject matter was to ablate targeted tissue such as tumors in an
organ of a living subject. In this record, we find unrebutted
evidence from Hansen that bench or in vitro testing does not
put into play important factors bearing on the invention's
operability for its intended purpose. Based on this unrebutted
29
Page: Previous 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 Next
Last modified: November 3, 2007