Interference 103,781
documentary evidence of its communication to others. Price v.
Symsek, 988 F.2d 1187, 1194, 26 USPQ2d 1031, 1036 (Fed. Cir.
1993). Because conception is a mental act, courts generally
require corroborating evidence showing a contemporaneous
disclosure to others. Burroughs-Wellcome Co. v. Barr Labs.,
40 F.3d at 1228, 32 USPQ2d at 1919. Here, Fischhoff presents us
with, what appears on its face to be, an undated written
memorandum (MDX 1478).
We deem it necessary that Fischhoff’s written memorandum not
only establish (1) conception of the invention of Count 2 by
Fischhoff prior to September 9, 1988, but also establish (2) the
date on which Fischhoff conceived of the invention disclosed
therein. Fischhoff argues that its written memorandum is dated
October 30, 1986 (FPB 126). To show that its written memorandum
is dated October 30, 1986, Fischhoff argued (FPB 65):
October 30, 1986 is the date on which I really
memorialized all of our thoughts on paper and set about
drafting the final version of a memo, what we would
now call a conception document, that outlined the
problem, the issues in the Bt genes, what we had seen
before, what the symptoms were, then our ideas for the
solution, namely resynthesizing, come up with a synthetic
Bt gene that would fix all those problems. . . .
October 30 is really when we decided that we had enough
ideas and knew the solution to the problem to really set
it down on a piece of paper that we would be committed
to as our approach to the solution. And that was
important to us to actually write it and document it
and then paste it into our laboratory notebooks.
(MR 0446, Delaware I trial transcript, p. 1087, l. 14-22, and
-76-
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