Patent Interference No. 103,892 Page 10
Has Davie Shown That It First Conceived of the Invention of the Count 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?
Davie has not shown that it first conceived of the invention of the count –
whether it be an isolated DNA encoding human factor XIIIa or human factor XIIIb – prior
to June 26, 1986, and proceeded with reasonable diligence from a time just prior to
Grundmann entering the field toward actually or constructively reducing it to practice.
Notwithstanding that Grundmann (brief, p. 812) does not effectively challenge Davie’s
case for earlier conception, Davie nowhere discusses its diligence from a time just prior
to Grundmann entering the field toward actually or constructively reducing the invention
to practice.
Davie does allege in its Summary of the Argument (brief, p. 9) that it “was the first
to conceive and reduce the subject invention to practice.” However, this statement is
not based on any conception-diligence-reduction-to-practice showing but on the basis of
an alleged “simultaneous conception and reduction to practice,” a doctrine which we
discuss in more detail below.
Since diligence is nowhere mentioned, Davie can not advance a case for priority
on the ground that it first conceived the invention prior to June 26, 1986, and then
proceeded with reasonable diligence from a time just prior to Grundmann entering the
12 “In its brief, Davie separately argues conception and reduction to practice. While Grundmann does not
believe that the articles of Davie Exhibits 1 and 2, along with the rest of the Davie Record, establish even
conception of the invention defined by a substitute count, Grundmann intends to address only Davie’s
reduction to practice.”
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