During this period, I also devised and typed out operating procedures for
testing the efficacy of my invention, which included the introduction of
gaseous grain refining reactants to a molten aluminum melt. A true and
correct copy of these operating procedures, dated September 29, 1997 and
entitled Preliminary Test Plan For Grain Refiner Development, are attached
hereto and marked as Exhibit 18.
Heshmatpour Declaration, p. 5,1 5(b). While stating that document is "dated" September 29,1997,
Dr. Heshmatpour does not testify as to the date when the document was prepared except wiih the
indefinite statement "during this period." We interpret this statement to be a reference to Dr.
Heshmatpour's testimony in the paragraph immediately preceding the above-quoted statement that
During aperiod covering about four (4) weeks immediately subsequent to the
execution of the confidentiality agreement ....
Heshmatpour Declaration, p. 5, ý 5(a). Dr. Heshmatpour testifies that the confidentiality agreement
was executed on September 7, 1997. Heshmatpour Declaration, p. 4, 1 4(c). "[W]here testimony
merely places the acts within a stated time period, the inventor has not established a date for his
activities earlier than the last day of the period." Oka v. Youssefyeh, 849 F.2d 581, 584, 7 USPQ2d
1169,1172 (Fed. Cir. 198 8); Haultain v. DeWindt, 254 F.2d 141, 142, 117 USPQ 278, 279 (CCPA
195 8). Thus, "about four weeks immediately subsequent to" September 7, 1997, establishes a date
for the document of no earlier than October 5, 1997. This date is prior to Megy's effective filing
date of October 16, 1997.
The other document appears to be a nine-page invention disclosure bearing the date October
13, 1997. A corresponding document was apparently not submitted with the § 1.608(b) materials
and does not appear to be discussed in Dr. Heshmatpour's declaration. Dr. Heshmatpour's brief
appears to address this document as Exhibit 41:
Exhibit 41 is my original write up for the in-situ part of my process for the
patent application. Both patent write ups were filed with my former attorney,
Allen N. Kutzenco during October to Noverinver of 1997.
Paper 55, pp. 3-4. The document is titled "In-situ Grain Refining of Aluminum and its Alloys in
Molten Metal Processing Systems." The document appears to relate to a method of grain refining
that does not use a master alloy but rather uses in-situ gaseous grain-refining material to form a grain
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