Interference No. 104,180
Bartz’s Standing
Bartz does not allege any other date of communication of the invention to Moore prior to
Moore’s date of August 27, 1993. Nor does the evidence show that any testing of the invention
by the senior party subsequent to May 1, 1993 inures to the benefit of the party Bartz. Bartz had
no conception of the invention as of May 1, 1993, and at page 18 of its brief, the junior party
admits that it was the senior party who, when presented with the junior party’s E burner at that
time, ordered its immediate delivery. Thus, any work performed by the senior party in producing
and testing a water heater with an E burner subsequent to May 1, 1993 was due to its own
initiative, not at the direction of the junior party. Lastly, Bartz does not contend that it was first
to conceive the subject matter of the count and reasonably diligent from just prior to Moore’s
entry into the field to a subsequent reduction to practice, actual or constructive, and cannot
prevail on that basis.
Based on this standing of Bartz, the party Moore is entitled to prevail on the issues of
priority and derivation.
Motions of the Parties
In view of the above findings, the motion of Bartz filed September 5, 2000 to suppress
the senior party’s evidence (Paper No. 59) and the motion of Moore filed November 17, 2000 to
disregard Bartz’s reply to Moore’s opposition to Bartz’s motion to suppress evidence (Paper
No. 69) are dismissed as moot.
Patentability of Moore’s Involved Claims
Under 35 U.S.C. §§ 102(f)/103
The party Bartz asserts that because the senior party derived critical elements 1, 3, 4 and
7 of the count from the junior party at the meeting on May 1, 1993 and added only elements
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