Interference No. 103,446
USPQ at 391 n.3 citing with approval Frey v. Wagoner, 87 F.2d
212, 32 USPQ 239 (CCPA 1937); Steinberg, 517 F.2d at 1364, 186
USPQ at 213; Peeler, 535 F.2d at 655, 190 USPQ at 123;
Horwath, 564 F.2d at 952, 195 USPQ at 705; Shindelar, 628 F.2d
at 1341, 207 USPQ at 116; Correge, 705 F.2d at 1329, 217 USPQ
at 755; Lutzker, 843 F.2d at 1367, 6 USPQ2d at 1371.
"[W]ithout an actual reduction to practice there is
no invention in existence which can be abandoned, suppressed,
or concealed." Peeler, 535 F.2d at 651, 190 USPQ at 120.
Thus, because we have already found that Sanns reduced an
embodiment within Count 1 before Martinez' effective filing
date, the starting point of our analysis on this issue begins
with what is the date which Sanns has proven for an actual
reduction to practice.
We have held above that Sanns' earliest date for an
actual reduction to practice is July 21, 1988. Based on that
date, the time elapsed between reducing to practice an
embodiment within the count and Sanns filing his application
becomes 11 (eleven) months. Martinez has not even addressed
in his brief let alone proved whether or not 11 (eleven)
months constitutes such an unreasonable amount of time as to
raise an inference of an abandonment, suppression or
concealment of the subject matter of the count. On that basis
alone, we find that Martinez has not met his burden of
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