Interference No. 103,197
spring and
summer of 1988, there is no need to address the alleged
subsequent activities.
8. Abandonment, suppression, or concealment
Assuming for the sake of argument that the February 1988
test apparatus represents an embodiment of the probe as it was
intended to be used in practice and that the February 1988
tests therefore constituted an actual reduction to practice,
the length of time between the reduction to practice and
filing (May 29, 1990) is long enough (two years and three
months) to create a rebuttable presumption that the invention
was abandoned, suppressed, or concealed. See Schindelar v.
Holdeman, 628 F.2d at 1342-43, 207 USPQ at 117 (two-year and
five-month delay between reduction to practice and filing of
application prima facie unreasonable). As a result, the
burden would be on Morrison to prove the existence of
activities during the delay period which are sufficient to
excuse the delay (e.g., efforts to improve or perfect the
invention disclosed in the involved patent application).
Lutzker v. Plet, 843 F.2d 1364, 1367, 6 USPQ2d 1370, 1371
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