From 8 September 1992 until 19 November 1992, there are
approximately nine weeks during which time there are no specific
activities towards obtaining a phase mask or making a phase mask.
That Anderson failed to diligently seek to obtain or make a phase
mask until well after the 8 September 1992 critical date is fatal
to Anderson.
The count of this interference involves a method for
fabricating a Bragg grating in the interior of an optical
waveguide by: 1) disposing a phase grating mask adjacent and
parallel to the optical waveguide and, 2) applying a single
collimating light beam through the mask to the optical waveguide
(Finding 6). Although the count requires essentially performing
two steps with two elements, e.g. a phase mask and a single
collimating light beam, Anderson fails to show activities of
obtaining either a phase mask or experimenting with a single
light beam" until well after the beginning of the critical
period.
In this light, Anderson takes the position that there were
other related activities that the inventors did towards reducing
the invention to practice, that occurred prior to 19 November
1992, e.g. the first attempt to obtain/make a phase mask, and
B During oral argument, counsel for Anderson indicated that
the Anderson inventors did not use a single collimating light
beam until the inventors obtained a phase mask (Paper 324 at 20,
lines 11-17).
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