Appeal No. 2006-1658
Application No. 09/801,617
Rule 131 declarations and accompanying exhibits are sufficient to show that Appellants’
invention was conceived prior to the critical date of February 22, 2001. Thus, the sole
issue before us is whether Appellants’ Rule 131 declarations and accompanying evidence
are sufficient to show due diligence from prior to the February 22, 2001 filing date of the
Weiss reference to the March 08, 2001 filing date of Appellants’ claimed invention.
After full consideration of the record before us, we agree with the Examiner that
Appellants’ Rule 131 declarations and supporting evidence are not sufficient to show due
diligence from prior to the February 22, 2001 filing date of the Weiss reference to the
March 08, 2001 filing date of Appellants’ claimed invention.
Accordingly, we affirm the Examiner’s rejections of claims 1 through 20 for the
reasons set forth infra.
With respect to due diligence, at page 5 of the Appeal Brief, Appellants state the
following:
Both the Examiner and Applicants agree that all that needs to be
established is diligence toward the filing of the present Application during
the 14 day period between just prior to February 22, 2001 and the March
8, 2001 filing date of the present Application.
During this period, all of the formal Application papers were being
prepared, proof read, and read by the inventors. Any trier of facts would
be expected to decide that 14 days was a reasonable period for carrying
out such a procedure.
Appellants further reiterate this same argument in the Reply Brief. In particular, at
page 3 of the Reply Brief, Appellants state the following:
Applicants needed only to show diligence during the fourteen day
period between February 22 and March 8, 2001. It is submitted that a
fourteen day period is not an unreasonable one during which a patent
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