Significantly, the CCPA declined to endorse a practice of placing
patent applications in a que which would result in a 4-year delay
as a "normal business practice that we should accept as part of
sound patent system". 535 F.2d at 654, 190 USPQ at 123.
p. A 5 year, 6 month delay was found to be
unreasonable in Lee v. Horwath.
q. A 2 year, 5 month (29 month) delay was found
to be unreasonable in Shindelar v. Holdeman. Significantly, in
Shindelar, the CCPA was willing to "excuse" only about 3 months
for preparing a patent application. The CCPA also noted that a
patent attorney's workload will not necessarily preclude a
holding of suppression or concealment. Specifically, the CCPA
notes, 628 F.2d at 1342, 207 USPQ at 116, that (1) one discussion
with an inventor, (2) an order to a draftsman to search patent
files, and (3) preparation of a search report could possibly
account only for a few days; in many circumstances, one month
would be ample allowance to a patent attorney to draft an
application; another month could be ample for a draftsman to
prepare the drawings; to be generous, perhaps another month could
be allowed to have the application placed in final form, executed
by the inventor and filed in the PTO. Thus, a three-month period
might be excused in analyzing suppression or concealment.4
4 A different, and stricter criteria, applies with respect to reasonable
diligence. Cf. D'Amico v. Koike, 347 F.2d 867, 146 USPQ 132 (CCPA 1965)
(attorney diligence; an unexplained one month period of time during the critical
period was found to be a lack of diligence).
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