Appeal No. 97-0939
Application 08/127,319
inventions for May and June,” which new inventions include inter alia a “peritoneal balloon.”
Exhibit G comprises photocopies of certain pages of an invoice from attorney Sudol dated
August 2, 1992. Under the heading “WO7-135 Peritoneal Clearance W/Balloon” are three entries
pertaining to the preparation of a patent application that was apparently filed on July 14, 1992.
The critical period for diligence under 37 CFR § 1.131(b) begins just prior to the effective date
of the reference (i.e., June 2, 1992) and ends with the date of constructive reduction to practice (i.e.,
July 14, 1992, the filing of application SN 07/913,601, the parent of the instant application). Appellant
must account for the entire period during which diligence is required. Gould v. Schawlow, 363 F.2d
908, 919, 150 USPQ 634, 643 (CCPA 1966).
A period lacking activity of as little as two days has been held to be fatal. In re Mulder, 716 F.2d
1542, 1545, 219 USPQ 189, 193 (Fed. Cir. 1983) (37 CFR § 1.131 issue).
On the record before us, the earliest indication that appellant thought to file a patent application
directed to the claimed method, and thus constructively reduce it to practice, is, at best, inventor Wilk’s
alleged discussion with attorney Sudol at some unspecified date prior to June 17, 1992 (Wilk
declaration, paragraphs 8 and 9; exhibits E and F). The record does not specify when the alleged
13
Page: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
Last modified: November 3, 2007