Interference No. 103,446
Martinez, the senior party has elected not to put on a
priority case of his own, Sanns shall be denominated the first
inventor of the subject matter of Count 1 and judgment issued
in his favor unless Martinez proves that Sanns abandoned,
suppressed or concealed his invention. 35 U.S.C. § 102(g)
(1999).
ABANDONMENT, SUPPRESSION OR CONCEALMENT
Although Sanns bears the burden of proving priority
of invention by a preponderance of the evidence (which burden
we have held he has sustained), the burden of proving by a
preponderance of the evidence that Sanns suppressed or
concealed their invention within the meaning of 35 U.S.C. §
102(g) falls upon Martinez, the senior party. Gallagher v.
Smith, 206 F.2d 939, 99 USPQ 132 (CCPA 1953). There is no
dispute that Martinez timely filed his notice of his intention
to argue that Sanns abandoned, suppressed or concealed an
actual reduction to practice. See 37 C.F.R. § 1.632 (1998).
We agree with Martinez that where there is an
"unreasonable" period of delay between an actual reduction to
practice and the filing of an application for patent there
exists a basis for inferring an intent to suppress or conceal
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