Appeal No. 96-3189
Application 08/396,079
seeing his invention and improving upon it [brief, page 12],
and there is no such admission in the prosecution of the
Appellants' patent application.
The Examiner does not take issue with the binding
authority of the Court of Appeals for the Federal Circuit.
But, on the issue of distinguishing Appellants' fact situation
from Hull on the basis of Hull's admission, the Examiner
disagrees. The Examiner contends that it is the conduct of an
applicant that is determinative of the undue delay in the
patent prosecution, as stated in Hull, at 191 USPQ 159:
Conduct by an applicant who seeks to obtain the
benefits of a patent ... and at the same time
attempts to unduly delay the time at which the
public would be entitled to the free use of the
invention ... is contrary to Constitutional and
statutory intent with respect to patents; ...
The Examiner further argues that even in Moore, the court
contemplated the conduct of an applicant, rather than any
explicit statement, and noted that the filing of numerous
continuation-in-part applications was, under the
circumstances,
necessary and was not the type of unconscionable conduct that
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