Interference No. 103,587
between Levien’s alleged actual reduction to practice and the filing of its application was such an
unreasonable delay as to raise an inference that Levien intended to suppress or conceal the
invention. The belated activity of the junior party in September 1989 in that period is
insufficient to overcome the inference. Although the inventor was a young man at the time, the
fact that he filed a patent application to another invention substantially before filing the
application which evolved into his involved patent, shows that he was aware of the importance of
filing for patent protection. The courts have implemented a public policy favoring, in
interference situations, the party who expeditiously starts his inventio n on the path to public
disclosure through the issuance of patents by the filing of patent applications. Peeler v. Miller,
535 F.2d at 655, 190 USPQ at 123.
Patentability of Levien’s Patent and Reissue Claims
Katayama charges (1) that Levien’s involved patent and reissue claims are unpatentable
to Levien under 35 U.S.C. § 102 as anticipated by Katayama U.S. Patent 5,325,448, (2) that
Levien patent claim 25 is invalid under 35 U.S.C. § 112, first paragraph, as not enabled, and (3)
that Levien reissue application claim 25 is invalid under 35 U.S.C. § 251 because it is based on a
defective reissue declaration. Whereas Katayama is entitled to prevail in this proceeding, these
matters are dismissed as moot.
Judgment
Judgment as to the subject matter of count 2, the sole count, is hereby awarded to
Akihiro Katayama, Hidefumi Ohsawa and Akiko Fukuhara, the senior party. On the present
record, the party Katayama et al. is entitled to a patent with claims 42, 43, 48, 49 and 53-55; the
party Katayama et al. is not entitled to a patent with claims 32-41. The party Levien is not
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