Appeal No. 95-4633
Application 07/135,067
prosecuted in K/D Applications I and II. As for the PTO delays in the rate of prosecution alleged by
appellants to have occurred since 1989, we find such delays to be immaterial in view of the fact that both
the Krueger I and Krueger II patents had already been granted by 1989.
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Appellants argue that In re Goodman and In re Emert do not apply to the application on appeal
because appellants did not act voluntarily to delay prosecution in the PTO. We disagree. The prosecution
history of K/D Applications I, II and III show a pattern of activity similar to the facts in Goodman and
Emert. During the four years of prosecution of applications leading to the filing of this application, appellant
voluntarily abandoned and refiled applications, rather than appeal decisions of the examiner. At one point
during the prosecution of K/D Application III in response to a restriction requirement, appellants voluntarily
elected not to prosecute claims directed to the claimed subject matter prosecuted in K/D Applications I
and II, which subject matter the examiner had been asserting was in conflict with subject matter claimed
in the Krueger I patent and in applications leading to the Krueger II patent. Appellants then voluntarily
waited seven months before filing the present application to continue prosecution of the claims which the
examiner had determined were in conflict with the Krueger I patent and the applications leading to the
Krueger II patent. The filing of the present application occurred at about the same time the Krueger II
patent
In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993).3
In re Emert, 124 F.3d 1458, 44 USPQ2d 1149 (Fed. Cir. 1997).4
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