Interference No. 104,745
§ 196; De Solms, 15 USPQ2d at 1511; Hoffman, 1512 USPQ2d at 1515; Justus, 177 USPQ at
340; Clement, 278 F. at 589, 1922 C.D. at 94; Dickinson, 263 F. at 476, 1920 C.D. at 153.
Laiko has not offered any evidence, such as a tracking report, to conclusively establish
when the repaired laser was received by Laiko. Instead, Laiko relies on Ms. Ferreira's testimony
that UPS Ground shipments from Laser Science to California typically took from five to seven
business days to establish a receipt date of 24-26 February 1998 (Tuesday-Thursday). Ferreira
Decl. (LX 1058) ¶ 12. Dr. Baldwin's and Mr. Walls' testimony that the laser was received during
this three-day period, Walls Decl. (LX 1079) ¶ 16; Baldwin Decl. (BX 1074) ¶¶ 55-60, 62-64,
presumably is based on Ms. Ferreira's estimate of the delivery time, as neither was able to
explain the basis for this range of dates. Baldwin Depo., LR 254, ll. 16-23; Walls Depo., LR
562, l. 14 to LR 564, l. 7. In any event, because testimony that an inventive activity occurred
during a stated period is construed against the proponent insofar as the date is concerned, we are
crediting Laiko with a receipt date of 24 February 1998, the earliest date in the period. Cf. Oka
v. Youssefyeh, 849 F.2d 581, 584, 7 USPQ2d 1169, 1172 (Fed. Cir. 1988)("In dealing with a
reduction to practice, the court in Haultain v. DeWindt, 254 F.2d 141, 117 USPQ 278 (CCPA
1958), stated, 'Further, where 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.' Id. at
142, 117 USPQ at 279. That rule is equally appropriate in establishing a date of conception, nor
does Youssefyeh dispute Oka's position that 'the last week in October' means October 31.").
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