marketing the product, and evaluating marketing efforts.
Rowland's commercialization activities will not save the day for
Rowland. Furthermore, most of the commercialization activities
occurred after the improvements and perfections were made. Such
events occurring near the end of the 31 months do not justify the
delay prior to those events.
It is well established that when "the delay [of filing an
application] is caused by working on refinements and improvements
which are not reflected in the final patent application, the
delay will not be excused." Lutzker v. Plet, 843 F.2d 1364,
1367, 6 USPQ2d 1370, 1372 (Fed. Cir. 1988). Furthermore, "when
the activities which cause the delay go to commercialization of
the invention, the delay will not be excused." Id.
Here, Rowland makes no effort to direct us to where in its
application the improvements are described, despite Rowland's
being on notice from Weaver of that requirement. We decline to
search through Rowland's application to determine if the noted
improvements are described in Rowland's application. Rowland
should have done that in response to Weaver's charge that the
activities were all towards improving the three-lumen catheter
and would not excuse a delay in filing its application.
Rowland alternatively argues that the Rowland inventor's
resumption of activities prior to Weaver's entering the field,
negates a charge of suppression and concealment, citing to Paulik
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