application" on October 11, 1997, and indicates that "my written patent application" was given to
Kutzenco at a meeting on October 13, 1997. We note that the October I I invention disclosure is
fourteen pages including one page of drawings. We, therefore, interpret the reference in the
chronology to be a reference to the invention disclosure bearing the date of October 11, 1997. We
found above that that disclosure does not describe the in-situ grain refining process. Thechronology
never mentions anything about another "patent application" or invention disclosure, in particular,
the invention disclosure bearing the date October 13, 1997. We find it somewhat peculiar that this
important document was not mentioned at all in the chronology.
In total, the evidence is simply too meager to support a finding that the subject matter of the
October 13 invention disclosure was disclosed to Kutzenco or to any other person. In any event,
even if the letter is sufficient to show disclosure of the alleged conception to others, it would only
prove the existence of a conception as of the date of the letter January 27, 1998, which is after
Megy's effective filing date. Oka, 849 F.2d at 584, 7 USPQ2d at 1172; Haultain, 254 F.2d at 142,
117 USPQ at 279. 1 1
Dr. Heshmatpour has failed to prove conception prior to Megy's effective filing, date of
October 16, 1997. Since proof of conception is a necessary element of derivation, we hold that Dr.
Heshmatpour has failed to prove that Megy derived the invention from Dr. Heshmatpour.11
Conclusion
We hold the Dr. Heshmiatpour failed to prove either an actual reduction to practice of
invention of the count prior to Megy's effective filing date of October 16, 1997. We also hold that
Dr. Heshmiatpour has not proved derivation of the subject matter of the count by Megy.
29 Because conception has not been proved, it is unnecessary for us to evaluate whether Dr. Heshmatpour
has proved the second component of derivation -communication of the conception to Megy.
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