Interference 103,781
invention of Count 2 on December 12, 1986, to the September 9,
1988, filing date of Adang’s Application 07/242,482, but also did
not conceive of the invention of Count 2 prior to December 12,
1986, the latest date the evidence shows that Fischhoff conceived
of the invention defined by Count 2.
A. Junior Party Fischhoff’s Case-In-Chief For Priority
I. Fischhoff’s Actual Reduction to Practice
As between Junior Party Fischhoff and Junior Party Barton,
common assignee Monsanto elected Fischhoff as first to invent
subject matter defined by Count 2 (Paper No. 182). Thereafter,
as the first step toward establishing that it was first to invent
the subject matter defined by Count 2, Fischhoff had the initial
burden to prove by clear and convincing evidence (37 CFR
§ 1.657(c)) that it actually reduced an embodiment of Count 2 to
practice before September 9, 1988, the filing date of Adang’s
benefit U.S. Application 07/242,482, now abandoned. Adang’s
involved U.S. Patent 5,380,831, which issued from Application
08/057,191, filed May 3, 1993, was accorded benefit for purposes
of priority of the invention of Count 2 of the filing date of
Adang’s U.S. Application 07/242,482 (Paper No. 148, pp. 66-68).
To satisfy its initial burden, Fischhoff argues first that
it actually reduced an embodiment of Count 2 not corresponding
to Claims 41-43 of its involved application to practice no later
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