Kindelmann v. Morsbach, 25 C. C. P. A. 1344, 1349, 97 F.2d 796, 799-800 (1938) King v. Young, 26 C. C. P. A. 762, 771, 100 F.2d 663, 670 (1938) Meuer v. Schellenger, 26 C. C. P. A. 1430, 1434, 104 F.2d 949, 952 (1939)

This view is supported by both logic and prior case law. E.g., Mortsell v. Laurila, 49 CCPA 1028, 1033, 301 F.2d 947, 951, 133 USPQ 380, 384 (1962) (preparation of patent application which, as filed, PTO never objected to on § 112 grounds, sufficient to establish conception); Walker v. Bailey, 44 CCPA 998, 1001, 245 F.2d 486, 488-89, 114 USPQ 302, 304 (1957) (disclosure by inventor, used by his patent attorney to prepare a draft application, together with their testimony, was sufficient to establish conception as of date the draft was prepared); Smith v. Kliesrath, 28 CCPA 1293, 1296-97, 120 F.2d 1015, 1017-18, 50 USPQ 82, 84 (1941) (conception was established at least as early as the date a draft of a patent application was finished by a patent attorney on behalf of the inventor); Brown v. Barton, 26 CCPA 889, 892-894, 102 F.2d 193, 195-96, 41 USPQ 99, 101-02 (1939) (inventor entitled to date of conception as of the time his patent attorney was in full possession of the invention); King v. Young, 26 CCPA 762, 771, 100 F.2d 663, 670, 40 USPQ 176, 183 (1938) (conception established as of date application for patent, even though never filed, was signed by applicant and notarized); Bader v. Burroughs, 49 App.D.C. 136, 138, 261 F. 1016 (1919); McCormick v. Cleal, 12 App.D.C. 335, 338 (1898). And it is irrelevant that the draft application in this case was not executed until July 17, 1972, for it has been stated, in accordance with the above, that "conception is less a matter of signature than it is one of disclosure."

We do not find that these cases, involving criminal prosecutions, support appellants' contention that the acts here urged were not "in a foreign country" within the express meaning of 35 U.S.C. § 104. Equally non-pertinent are the cases of King v. Young, 100 F.2d 663, 670, 26 CCPA 762, 771 (1938) and Fox v. Kingsland, 81 F. Supp. 433, 437 (D.D.C. 1948), cited by appellants for the proposition that execution of an application before a notary is evidence of conception even though the notary did not read or understand the disclosure, since these cases involve acts in the United States and do not have meaning in this context as applying to 35 U.S.C. § 104. Newton took testimony, the legal sufficiency of which is the central issue in this appeal. Schmierer also took testimony, relating primarily to the reasons why his filing date in the United States was delayed beyond one year after his French filing date.

The fact that the plaintiff drew up his application prior to his removal from the Patent Office payroll but did not then file it with the Patent Office does not change his interest from one in an invention to one in a patent. An executed but unfiled application is only evidence of conception. King v. Young, 100 F.2d 663, 670, 26 C.C.P.A., Patents, 762. * * * "This Court is not unmindful of the potential danger involved in allowing Patent Office employes to resign and immediately thereafter to file an application for a patent.

On the contrary, the rule is well established that in an interference, expressly defined limitations of a count cannot be ignored. See Ernest J. Sweetland v. Don Cole, 53 F.2d 709, 19 C.C.P.A. (Patents) 751, 754, and authorities therein cited; King v. Young, 100 F.2d 663, 26 C.C.P.A. (Patents) 762, 771. Counsel for appellee takes the position here that the only reasonable inference to be drawn from appellant's evidence is that the work which was done by him at the Dartmouth Street laboratory prior to appellee's filing date was part of a general and continuing program of research conducted by appellant and his associates in which the specific invention here involved was not clearly shown to have been definitely conceived by appellant.

Greene et al. v. Beidler, 2 Cir., 58 F.2d 207. In the case of King v. Young, 100 F.2d 663, 669, 26 C.C.P.A., Patents, 762, it was held that a certain device constructed and successfully operated by appellee conformed to the count in issue, and that a device constructed and successfully operated by appellant did not so conform. In our decision we stated: "It may be that appellant's said device accomplished the same purpose as appellee's Exhibit 6. This we are not called upon to determine, for it is well established that in interference counts express limitations may not be ignored. Sweetland v. Cole, 53 F.2d 709, 19 C.C.P.A., Patents, 751."

An executed but unfiled application is only evidence of conception. King v. Young, 100 F.2d 663, 670, 26 C.C.P.A.Patents, 762. It is further authoritatively stated that "an application for a patent dates from its filing in the patent office and not from the day of its execution by the applicant.