Interference No. 104,403
requires that a party establish that the party reduced to practice the
whole claimed invention prior to the effective date of the reference. In
re Tanczyn, 347 F.2d 830, 832, 146 USPQ 298, 300 (CCPA 1965). In
the instant case, the junior party argues that the evidence of priority is
sufficient pursuant to 37 CFR § 1.131 to swear behind the Magee ‘525
reference.
The junior party does not discuss how the 131 affidavit
establishes that the junior party had reduced to practice the invention of
claims 1 through 8 and 11. However, as the priority evidence, in our
view, is sufficient to establish a reduction to practice of the whole
claimed invention prior to the filing date of Magee ‘525, it is not
necessary to discuss the 131 affidavit.
In its motion urging the obviousness of the Rosenthal claims, the
senior party argues that, Magee ‘525 provides the motivation or
incentive to modify what the senior party regards as the primary
reference (U.S. Patent No. 4,541,727) by disclosing a unitary sheet
having a convex outer lens combined with an internal desirable image
along with regularly spaced apart transparent sections wherein a
second spaced apart image may be viewed so that an observer can
view either the first or second image at various orientations exclusively
(Magee motion 3, page 4).
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