question of law of suppression under § 102(g) need not be remanded for board’s views
How later courts described this case
- question of law of suppression under § 102(g) need not be remanded for board’s views
Written by the judges who cited it.
The opinion
MILLER, Judge
(concurring).
The decisive question in this case is whether appellants have sustained their burden of proving beyond a reasonable doubt that before December 26, 1962, they recognized that they had obtained Form II ampicillin. That they had actually obtained it, as the majority finds, is amply supported by the record, including Bomstein’s unrebutted testimony that the spectrograph of each of various lots, particularly K2035, was the same as Figure 1 of appellants’ application.
Appellees have attached great significance to the Rule 131 affidavit (included in the file wrapper of the Form III patent, 3,472,841, assigned to Bristol-Myers) asserting actual reduction to practice of Form III ampicillin prior to December 26, 1962. The affidavit is significant, as appellees point out, in showing that the contemporary, recorded statements of Hull, Messerly, and Poliak, and the testimony of Dr. Johnson are ambiguous in that these distinguish a form of ampicillin from Form I, but do not differentiate between Form II and Form III. However, the affidavit is also significant in that the accompanying spectrograph for lot 12CD149 contains a notation “Form III.” The date “11/23/62” in the “CD Book” (appellants’ exhibit 24) is that on which the number 12CD149 was assigned. Thus, on or after November 23, 1962, but prior to the critical date of December 26, 1962, there was recognition of Form III. If there were recognition of Form III, there had to be recognition of Form II.