Robert A.w. Johnstone, et al., Appellants, v. Nicholas P. Greco, et al., Appellees, 845 F.2d 1034 (Fed. Cir. 1988)

DECISION

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. § 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.