Appeal No. 97-0939
Application 08/127,319
discussion took place, or precisely what was discussed. Accordingly, even when viewed in a light most
favorable to appellant, appellant’s showing has not adequately accounted for the time from just prior to
Kieturakis’ entry into the field on June 2, 1992 up to the alleged discussion with attorney Sudol some
time prior to June 17, 1992, a period of time that could have been up to two weeks. This unaccounted
for period of time in appellant’s attempt to show diligence coupling his conception to the effective filing
date of the present application leaves a hiatus that is fatal to appellant’s showing. In re Mulder, 716
F.2d at 1545, 219 USPQ at 193. We therefore conclude that appellant’s evidence does not show
diligence in constructively reducing the presently claimed invention to practice for the critical period
beginning just prior to the effective filing date of Kieturakis to the filing date of the parent of the instant
application, as required by 37 CFR § 1.131(b). It follows that we simply do not agree with appellant
that “the short time between Appellant’s conception and the filing of parent application No. 07/913,601
on
July 14, 1996 [sic, 1992] itself is evidence of Appellant’s diligence in [constructively] reducing the
invention to practice” (reply brief, page 3).
Thus, on the record before us, Kieturakis is still applicable as prior art. In that appellant has not
specifically disputed the examiner’s position that the Kieturakis disclosure anticipates the subject matter
14
Page: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
Last modified: November 3, 2007