NEDELK V. STIMSON et al. - Page 19



            Interference No. 102,755                                                                   


            required to carry out the invention was simple and required no                             
            research and development, with the result that all that was                                
            required to reduce the invention to practice was to install                                
            the control apparatus on a suitable new aircraft, which did                                
            not become available until the summer of 1988, when British                                
            Aerospace issued a request for proposals for a braking system                              
            to be used in the Airbus A330/340.  The fundamental problem we                             
            have with this argument is that the evidence fails to                                      
            demonstrate that prior to February 16, 1988, a decision had                                
            been made to reduce Nedelk's invention to practice.  A party                               
            cannot be excused for failing to act unless the party had an                               
            intent to act but for the circumstances offered as an excuse.                              
            See Smith v. Crivello, 215 USPQ 446, 453 (Bd. Pat. Int. 1982)                              
            ("an essential requirement of every acceptable excuse for lack                             
            of diligence is a reasonable showing that except for the                                   
            excuse the inventor would have been working on the invention                               
            during the period he seeks excused.").  Compare Keizer v.                                  
            Bradley, 270 F.2d 396, 399, 123 USPQ 215, 217 (CCPA 1959)                                  
            (holding that the evidence shows a continuing intent to reduce                             
            automatic chroma control circuit to practice as soon as                                    
            television receiver reached suitable stage of development).                                
            The testimony to the effect that the Patent Screening                                      
            Committee decided in December 1986 to delay filing a patent                                

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