Appeal No. 96-3189
Application 08/396,079
"arduous route" of reaching claims adequately covering the
invention (Brief, page 9) is not persuasive since appellants
took no action with respect to the amending or changing the
claims until after they received the Hull warning. Thus,
appellants' reliance on Moore v. U.S., 194 USPQ 423 (Ct. Cl.
1977) is unavailing. The only reasonable inference we can
draw from appellants' conduct is that appellants seek to
unjustifiably delay the issuance of a patent to extend the
beginning (and, consequently, the expiration) of the
enforceable patent term.
The delay in issuance has caused harm and prejudice to
the public in the United States. The public's right to freely
use appellants' invention has been unjustifiably postponed
because the end of the enforceable term has been delayed.
Appellants argue that there will be no term prolongation
(Brief, page 7):
The patent term for a patent issuing on the subject
application is likewise invariant. . . . Applicants will
enjoy no term prolongation. The public, having been
apprised of the content of the invention disclosure, has
been free to enjoy free use of the invention in the U.S.
since the date of publication of the counterpart Japanese
applications, since a U.S. patent monopoly only commences
of the issue date of a patent and is then of fixed term,
at the expiration of which the public again comes to
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