In my view the proofs of Gould are satisfactory to show conception of side walls that are transparent to the pumping energy. Gould’s Exhibit 1 refers to “Light Amplification” by stimulated emission of radiation and the excitation is optical from an external discharge. Thus, I agree with Gould that a side wall meeting that requirement of the counts was conceived.
*922However, I do not think that conception of the requirement, “transparent to or absorptive of other energy radiated thereat,” meaning non-reflective side walls so that other modes would not be excited, was established. Although some lateral loss was expected, that does not establish the concept of non-reflectivity of the side walls.
In my view, that is as far as this court need go and discussion of diligence is dictum, as clearly what has not been conceived as of a given date cannot be proven as constructively reduced to practice by showing diligence from that date. However, I find it necessary to add the following comments since I feel the board misconstrued the requirement of diligence when appellant urged that he was working toward an actual reduction to practice of a working laser, that is, a physical embodiment of the invention.
The board noted appellant has failed to prove “specific significant acts directly related to giving the invention a physical embodiment.” [Emphasis added.] There is, however, but a single standard for diligence regardless of whether the parties rely on an actual reduction to practice or, as here in the case of both parties, a constructive reduction to practice. The board, in looking for specific significant acts related to a physical embodiment, seems to be setting a standard of diligence that cannot be met or is not required in any constructive reduction to practice case. This is particularly true where, as here, the nature of the invention is highly theoretical and actual reduction to practice is a financial impossibility for all but corporations or the government.
I do not think that any standard of diligence should penalize either the privilege afforded inventors of obtaining a constructive reduction to practice by filing a patent application or the inventor’s attempts to continue toward an actual reduction to practice. To me the question is whether appellant has been diligent in working on the invention, whether toward preparation of papers for filing an application or toward construction of a physical embodiment. Leaving one’s drawing board for the work bench should not be a presumptive “lapse” or break in the chain of diligence, even where at the work bench it becomes apparent that the physical embodiment is far off, and it is necessary to fall back on a constructive' reduction to practice. This seems to be true particularly where the legal conclusion of whether the application satisfies 35 U.S.C. § 112 is not necessarily predictable. I would give little legal effect to an intervening contact with an attorney as the question is whether the inventor was diligent in working on the invention.
I do not mean to imply that I take issue with the majority’s conclusion as to diligence and corroboration. Rather, I do not find it necessary to reach the issue. I simply do not wish to place any stamp of approval on the board’s language.