Appeal No. 2002-0913
Application No. 09/107,643
of the reference patent. The only portions of Tracy I relevant
to an actual reduction prior to the effective filing date of
Foreman are paragraphs 3 and 4, which refer to a model or
prototype being created and left with appellant’s first patent
counsel, Roger Van Epps, on or about October 3, 1986. However,
there is no evidence of record as to the nature of the model or
prototype, or as to whether the model or prototype was tested to
see if it worked for its intended purpose. Nor is there any
corroboration for the facts alleged in paragraphs 3 and 4. On
this basis, we conclude that Tracy I does not establish an actual
reduction to practice prior to the effective filing date of
Foreman.
Tracy I also does not establish conception of the invention
prior to the effective filing date of the reference patent
coupled with due diligence to a constructive reduction to
practice (i.e., the filing of the ‘681 design application).
Assuming that the disclosure document 166,418 referred to in
paragraph 2 of Tracy I establishes conception of the invention
prior to Foreman’s effective filing date, due diligence from just
prior to Foreman’s October 10, 1986 effective filing date to the
September 8, 1987 filing date of the ‘681 design application has
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