Appeal No. 95-0423
Application 07/696,859
[t]he facts revealed in the [Prywes I] declaration
under 37 C.F.R. 1.131 show a delay of 3 years and 8
months (44 months) from the time of conception to
the time of filing of the application in this case.
It can be inferred that the application has been
abandoned by reason of unexplained delay. [answer,
page 4]
The examiner acknowledges that “intent is a consideration in
the holding of abandonment and that delay, alone and of
itself, is not sufficient for a holding of abandonment”
(answer, page 6). Nonetheless, the examiner has taken the
position that in this instance the delay is unexplained, and
that for this reason “the delay of 44 months in filing the
patent application suggest[s] more at an attempt to abandon
rather than an attempt not to abandon” (answer, page 6).
Appellant cites Ex parte Dunne, 20 USPQ2d 1479, 1480
(BPAI 1991) for the proposition that delay in filing alone is
not a sufficient basis from which to infer the requisite
intent to abandon under 35 U.S.C. § 102(c). In addition,
appellant relies on a declaration (Prywes II) wherein the
inventor asserts on page 1 thereof that “[i]n the interval of
time between September 12, 1987 and the filing of the
application, I intended to maintain my invention and at no
time had any intent whatsoever to abandon the same.”
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