Appeal No. 97-0939
Application 08/127,319
effective filing date of the Kieturakis patent. Therefore, the dispositive issue with respect to this6
rejection is whether the Wilk declaration is effective to remove Kieturakis as a reference.
37 CFR § 1.131(b), in pertinent part, reads as follows:
[o
The showing of facts [required to overcome a reference cited against a claim] shall be
such . . . as to establish reduction to practice prior to the effective date of the reference,
or conception of the invention prior to the effective date of the reference coupled with
due diligence from prior to said date to a subsequent reduction to practice or to the
filing of the application.
In the present instance, appellant contends that the Wilk declaration and supporting exhibits
“establish a date of conception prior to the earliest effective filing date of Kieturakis et al., i.e., prior to
June 2, 1992 . . . [and] diligence from the conception date to a subsequent (constructive) reduction to
practice” (reply brief, page 2).
We have closely reviewed the Wilk declaration and supporting exhibits and have concluded,
based on exhibits A-D, that appellant has established conception of the invention prior to June 2, 1992,
the earliest effective date of the Kieturakis reference. However, we do not agree that appellant has
established diligence from just prior to Kieturakis’ entry into the field on June 2, 1992 to appellant’s
6The effective filing date of Kieturakis is June 2, 1992, which is the filing date of the
grandparent SN 07/893,988 application thereof. See item [60] on the cover sheet of the Kieturakis
patent, as well as column 1, lines 5-7, of the specification.
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