Interference No. 103,587
until September 1989 when, after licensing the earlier patent, the inventor asked his father what
he should do with the proceeds. It was his father who suggested that he file patents on his other
ideas. Lastly, Katayama asserts that the inventor’s testimony that he did not file an application
on Dot 2 because he was attempting to commercialize this invention is an insufficient excuse.
The senior party submits it is well established that commercial development of an invention can
never excuse an unreasonably long delay in filing a patent application. Lutzker v. Plet, 843 F.2d
1364, 1367-68, 6 USPQ2d 1370, 1372 (Fed. Cir. 1988).
Opinion
Where an interference is between a patent that issued on an application that was
copending with an interfering application, the applicable standard of proof is preponderance of
the evidence. Bosies v. Benedict, 27 F.3d 539, 541-42, 30 USPQ2d 1862, 1864 (Fed. Cir. 1994).
Accordingly, Levien must establish that it was the first inventor by a preponderance of the
evidence.
It is considered that the junior party has not established conception of the subject matter
of count 2 at any time prior to its filing date. Count 2 requires “a recursive relationship between
a value of a current input point, a previous output, and an error representing a difference between
a value of a previous input point and the previous output.” Although Jack Levien testified to the
effect that on November 8, 1987 his son, Raphael, disclosed a plan to him which utilized
recursion and prior outputs, that testimony is deficient in that Jack Levien did not testify that this
recursion was the specific recursion set forth in the count. The corroborator’s testimony says
nothing about a recursive relationship involving a value of a current input signal or an error
representing a difference between a value of a previous input point and the previous output. To
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