Interference No. 103,345
public disclosure by filing a patent application, we
do not believe that a charge of abandonment,
suppression or concealment may be sustained against
a senior party where, as here, the charge is based
solely on an unexplained delay between actual
reduction to practice and filing, and there is no
evidence either of specific intent or that the
senior party was spurred into filing his application
by knowledge of the opponent's activities.
Roberge has pointed to no evidence of spurring or specific
intent and therefore has failed to demonstrate that Staples
abandoned, suppressed, or concealed the invention even
assuming the second model amounted to an actual reduction to
practice. Consequently, we need not decide whether, as
Staples contends, that model failed to constitute an actual
reduction to practice because it was not tested in a patient's
mouth.
Judgment
Judgment on the issue of priority is hereby awarded
in favor of Staples, who is therefore entitled to a patent
containing his application claims that correspond to the
count, i.e., claims 1-23. Accordingly, judgment on the issue
of priority is hereby entered against Roberge, who is
therefore not
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