845 F. 2d 1034 - Aw Johnstone v. P Greco
845 F2d 1034 Aw Johnstone v. P Greco
845 F.2d 1034
Robert A.W. JOHNSTONE, et al., Appellants,
v.
Nicholas P. GRECO, et al., Appellees.
No. 87-1586.
United States Court of Appeals, Federal Circuit.
Feb. 23, 1988.
Unpublished Disposition
NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
Before MARKEY, Chief Judge, EDWARD S. SMITH and MAYER, Circuit Judges.
MARKEY, Chief Judge.
DECISION
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The decision of the Board of Patent Appeals and Interferences ("Board"), Interference No. 101, 179, awarding priority of invention to Nicholas P. Greco, et al. ("Greco"), is affirmed.
OPINION
Johnstone admits that it never actually reduced to practice in the United States the invention of the Count. We do not agree that the Board erred when it refused to find "reasonable diligence." Because authorization had never been given for production of arsenic acid at the planned CCA facility, the record shows at most an intent to authorize construction of facilities for practicing the invention at some future date. Such evidence cannot constitute either "reasonable diligence" within the meaning of 35 U.S.C. Sec. 102(g) or "commercial exploitation" of the invention. Similarly, Johnstone's efforts toward EPA approval are irrelevant in light of the failure to obtain authorization to proceed with production of arsenic acid.
Because no activities in the United States constituted an effort toward "commercial exploitation" of the invention, Johnstone's activities in Great Britain, if otherwise relevant, are irrelevant here.