Interference No. 103,345
Trademark Office, which occurred two days later, on December
23, 1992. Since this leaves the first five and one-half weeks
of the critical period unaccounted for, Roberge cannot be
credited with diligence during that period. See Fitzgerald v.
Arbib, 268 F.2d 763, 766, 122 USPQ 530, 532 (CCPA 1959) (party
held not diligent where, after making a drawing in June, the
party took no other action until December 2, nearly one month
after opponent's November 4 entry into the field).
Roberge's failure to prove diligence means Staples
is entitled to an award of priority based on his filing date,
which makes it unnecessary to consider any of Staples's
priority evidence. This includes the evidence that Roberge
argues
demonstrates abandonment, suppression, or concealment of the
invention following actual reductions to practice in 1990 and
1992, when Staples constructed the first and second models of
the invention. Even if abandonment, suppression, or
concealment occurred, this would not have the effect of
depriving Staples of the benefit of his filing date. Instead,
he would be barred only from relying on those reductions to
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