Patent Interference No. 103,892 Page 9
of Count 1 is that it reads on either isolated DNA encoding human factor XIIIa or human
factor XIIIb.
The party who is first to reduce to practice an embodiment falling within the count
is entitled to prevail in the interference. Weil v. Fritz, 572 F.2d 856, 865-66 n.16,
196 USPQ 600 , 608 n.16 (CCPA 1978). Accordingly, the party who is first to conceive
and proceed with reasonable diligence toward a reduction to practice, either actual or
constructive, or actually reduce to practice, an embodiment of Count 1 – e.g., an
isolated DNA encoding either factor XIIIa or XIIIb, shall prevail in the interference.
Davie will have satisfied its burden of proving an earlier date of the invention
defined by Count 1 if all11 the proffered evidence demonstrates that, more likely than
not, Davie:
9 first conceived of the invention of the count – e.g., an isolated DNA encoding
either factor XIIIa or factor XIIIb - prior to June 26, 1986, and proceeded with
reasonable diligence from a time just prior to Grundmann entering the field
toward reducing it to practice, either actual or constructive, or
9 actually reduced it to practice before June 26, 1986.
11 See footnote 7.
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