Appeal No. 1998-2848
Application 08/398,862
diligence from a date prior to Smith's filing date to the
constructive reduction to practice which occurred on the
filing date of Appellant's application. We do not understand
what the Examiner's comments have to do with diligence.
Diligence is whether Appellant and his attorney worked without
delay to get the application filed, not the contents of the
document and the authenticity. While we agree with counsel's
statement that, in many circumstances, "[i]t is not
unreasonable to expect the preparation of a patent application
to take the interval from December 2, 1994 until
March 6, 1995" (Br18), since the delay is over three months, a
declaration of counsel would normally be expected setting
forth dates establishing progress towards filing. Therefore,
Appellant has not established diligence from a date prior to
Smith's filing data to the application filing date and the
Rule 131 declaration is insufficient to overcome Smith. The
anticipation rejection of claims 1-39 is sustained for this
additional reason.
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