Patent Interference No. 103,812
The following issues are before this panel at final hearing:
(1) Whether Rosenquist has demonstrated an actual reduction to practice of an
invention within the scope of Count 2 prior to May 20, 1994, the effective filing date of senior
party Scholl's involved Application 08/438,516.
(2) Whether Rosenquist's proposed Count A should be substituted for Count 2.
In addition, senior party Scholl filed a motion to suppress certain evidence submitted by
junior party Rosenquist. See Paper No. 44. Rosenquist filed an opposition to that motion. See
Paper No. 47.
Senior party Scholl's motion to suppress
Senior party Scholl filed a motion to suppress certain evidence submitted by Rosenquist.
See Paper No. 44. For the reasons set forth below, junior party Rosenquist does not prevail in
this interference whether or not that evidence is suppressed. Therefore, Scholl's motion to
suppress is dismissed.
Junior party Rosenquist's case for priority
I.
According to Scholl's preliminary statement, "Party Scholl et al does not intend to present
evidence to prove a conception or an actual reduction to practice, but intends to rely on the filing
date of German Patent Application No. P 4417748.8, filed May 20, 1994, which was identified
in the notice declaring interference (37 CFR §§§ 1.626, 1.630 and 1.611(c)(5))." See Paper No.
18; see also Paper No. 31, p. 5. Therefore, the dispositive issue in this case is whether junior
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