Morrison because those facts are "subject to reasonable dispute".
Fed. R. Evid. 201(b).7
Morrison further argues that the time period from 17
September 1991 through 28 June 1993 "obviously included the
careful preparation of a patent application and review by the
inventors or else there would have been no patent application to
file on 28 June 1993 (Paper 51, page 10). It is not obvious to
us when the application was prepared and/or reviewed.
Even if a "quality patent application" requires a
preliminary search, Morrison has not favored us with a brief
which helps us review the record to determine when, and if, any
search was performed. Nor have we been favored with a discussion
in Morrison's briefs as to the dates on which any other relevant
action might have taken place to prepare, revise and file a
patent application. Cf. Fujikawa v. Wattanasin, where there was
evidence of when events which took place in connection with the
preparation of a patent application. On the other hand, in
Shindelar, when there was no meaningful evidence, the CCPA was
able to "excuse" on the issue of suppression or concealment only
a 3-month period. Here we have an unexplained 21-month period.
Since Morrison, not Lakes, is in possession of the evidence which
would tell us a story which might avoid a holding of suppression
or concealment, we have no difficulty drawing adverse inferences
against Morrison for failure to put that evidence before the
7 The Federal Rules of Evidence apply in interference proceedings. 37 CFR
§ 1.671.(b).
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